SOMASUNDARAM @ SOMU v. THE STATE

charged with the aid of Section 109 of the IPC. In order that there is abetment, it is indispensable also that there is a person who abets another. There is a principal player and the abettor. The principal player would be guilty for the acts or omissions which amount to offences under the law. The abettor though does not trigger the gun, “is the moving force behind it and becomes liable as such”. In this case, the Trial Court has proceeded to find the appellants (except A5) guilty of the fifth charge under Section 302 IPC whereas the A1 and A2 were found guilty of the charge of conspiracy under Section 120B of the IPC. In other words, the idea to commit the offences came into being in the minds of A1 and A2. The other players were roped in on the basis of their acts which was in tune with the conspiracy hatched by A1 and A2. The acquittal of A12, who was charged under Section 120B of the IPC and also for offences under Sections 419, 420 and 387 of the IPC read with Section 109 of the IPC would not detract from the criminality of the acts committed by the other accused and, in the facts of this case, there is no illegality involved in convicting the appellants in the manner done under Section 302 of the IPC. The Trial Court found that the plan was the brainchild essentially of A1 and A2. [Paras 136, 137][123-D- H; 124-A]

#8. The acquittal of A12 would not deflect from the factum of the conspiracy between A1 and A2. So also, the acquittal of A3 in this regard. A1 and A2 have been convicted under Section 302 read with Section 109. Accused 1 and 2 have been held guilty under Section 120B. This means that since accused 1 and 2 are held guilty under Section 120B of the IPC to commit the murder of the deceased, they are to be punished as if they have abetted the said offence. The judgment of the trial Court is to be understood in the said vein. It is true that abetment by conspiracy is only one form of abetment. There can be alternate charges. There can be abetment by instigation and intentional acting even when there is no conspiracy and, therefore, no abetment by conspiracy. The fifth charge against A1, A2, A5, A9, A12 and A13 would be in the form of an alternate charge. This is so as A5 (Appellant) is charged and found guilty of murder under Section 302 of the IPC read with Section 109 of the IPC. The role of A5, particularly, having regard to the statement under Section 27 of SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE the Evidence Act, leading to recovery of the Van, the discovery of the site of the factory and the cremation ground besides other evidence, cannot be ignored. It is clear that their acquittal under Section 120B of the IPC will not impact their conviction under the other provisions. [Paras 138, 139][124-E-F; 125-B-E]

#9. The evidence of PW10 and PW11 was credible and the presence and role attributable to A6 cannot be brushed aside. The presence of A6 spoken to by the accomplices on 05.12.2001, 30.12.2001 and, particularly, on 01.01.2002 on which last day in carrying the dead body in the van which is later identified by the police officer at a spot near the cremation ground is certainly a vital circumstance which cannot be brushed aside. The role of A6 in the illegal confinement appears to be established. [Para 140][126-A-C]

#10. As far as the murder is concerned, there is no direct evidence that deceased is murdered by strangulating him. However, it is equally true that on the basis of recovery made at the instance of A16, a nylon rope and chain was recovered which undoubtedly strengthens the prosecution case. There cannot be medical evidence relating to murder in a case where the body stood cremated. The players thought it through meticulously by destroying the corpus delicti by cremation. The abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer. The principle is that after abduction, the abductor would be in a position to explain what happened to his victim and if he failed to do so, it is only natural that an irresistible inference may be drawn that he has done away with the hapless victim. Section 106 of the Evidence Act would come to the assistance of the prosecution. [Paras 141, 142][126-E-H] State of W.B. v. Mir Mohamad Omar (2000) 8 SCC 382: [2000] 2 Suppl. SCR 712 – referred to

#11. Section 387 is heightened form of extortion in which the victim is put in the fear of death or grievous hurt. Section 347 involves wrongful confinement of a person for the purpose of committing extortion. The appellants were convicted under 37 A B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. Sections 347 and 387 of the IPC. This is not an inexorable rule but to be applied based on the factual matrix presented before the court. Where abduction is followed by illegal confinement and still later by death, the inference becomes overwhelming that the victim died at the hands of those who abducted/confined him. The deceased was brought in a Ford Escort car. He was brought by A4, A11, A16 and A17. The case of the prosecution is that except A12, A4 to A18 were the henchmen of A3. The accomplices are credible witnesses when the whole circumstances are borne in mind. Their evidence may not be immaculate in character. But the test is whether it is safe to convict the accused believing such witnesses. As regards the crime and the accused, their testimony brings home the truth, as regards accused who are appellants. There is no motive attributed to PW10 and PW11 to falsely implicate. The presumption of murder was rightly drawn. [Paras 143, 144][128-F-G; 129-G-H; 130-A-B]

#12. The role of A15 is clear who was not only been referred to in the accomplice evidence but corroborates his link in the abduction with the recovery of motorcycle at his instance. It rightfully earned him conviction under Section 365 IPC. There were two cars apart from the Ford Escort on 30.12.2001 at the site of the illegal confinement. From the Maruti Zen, three persons emerged as witnessed by PW11. It is true that PW11 has not identified them. That apart there was also a Tata Sumo, PW11 no doubt identified A5 and A7 apart from A15 as the persons who came back on 30.12.2001 with tiffin after leaving the factory. The trial court convicted A4, A11, A15, A16 and A17 under Section 365 which is unassailable in regard to these accused. There is no error in the court drawing the presumption that they are also guilty of murdering the deceased. PW3 spoke of three men pushing another into a van on 30.12.2001. The van moved and it was followed by a motorcycle. A15 gave a statement leading to the recovery of a motorcycle. The evidence is relied by the two courts and there is no reason to take a different view. [Paras 145, 146, 147][130-C-E]

#13. As far as A3, A5, A6 and A8 are concerned, they were convicted under Section 365 read with Section 109. Abetting is to be understood in the context of their acting on the conspiracy 38 A B C D E F G H SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE which stood proved against A1 and A2. No doubt, abetting also takes place when there is instigation or intentional aiding. The role of A3 looms large. It is clear that he organised the whole thing and it commenced with the search for an appropriate house where the victim could be confined after the abduction. His role along with his men in carrying out the crime culminating in the cremation under fictitious name of the abducted person is clear. [Para 148][130-F-H]

#14. As far as A7 and A14 were concerned, they were also convicted under Section 365 and also under Section 364. The involvement of A7 is clear. He makes his maiden appearance in the accomplice evidence as early as on 05.12.2001. PW10 witnessed him standing along with certain other accused by the side of the deceased who was then clearly in the state of illegal confinement. He further established his complicity by bringing down the body of the deceased on 01.01.2002 along with three others. A7 and A14 ought to have been convicted under Section 365 read with Section 109 of the IPC. A3, A5, A6 and A8 stood convicted under Section 365 read with Section 109. However the charge as against A7 and A14 was under Section 365. The charge against A14 is also under Section 365 read with Section 109 of the IPC. All the appellants were convicted also under Section 364 of IPC. The evidence in this case no doubt through the mouth of PW10 and PW11 who alone have witnessed what truly happened would establish that on 31.12.2001, PW10 saw A5, A6, A7, A8, A11 and A14 when he saw the deceased who was at that time tied up on the first floor. Thus A5, A6, A7, A8, A11 and A14 are persons who can be and have also been convicted in connection with the illegal confinement of the deceased. [Paras 149, 150, 152][131-A-D, F, G]

#15. A4, A7, A11, A14, A15, A16 and A17 are persons who were found guilty under Section 365 of the IPC. A3, A5, A6 and A8 stood convicted under Section 365 of the IPC with the aid of Section 109 of IPC. All of them were also convicted under Section 364 of the IPC. In this regard there is a dichotomy involved. The law attaches criminality to the act or omission by a person. Another person may become liable as an abettor, a person who has conspired and thus liable under Section 120B, a person who 39 A B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. has shared a common object and thus become vicariously liable and if there be five or more persons u/s. 141 read with Section 149 or if the principle of vicarious liability embedded in Section 34 of the IPC is attracted. In other words, for a conviction under Section 364, actual abduction is necessary. A person could no doubt be liable under Section 364 read with Section 34 or under Section 364 read with Section 149 or under Section 364 read with Section 109 or if he is found guilty under Section 120B. In this case, there is no scope for either Section 120B or 149. However just as they have been found guilty under Section 365, they are liable to conviction under Section 364 in the same manner namely the abduction within the meaning of Section 364. The abduction is alleged to have been taken place on 30.12.2001. The essence of abduction is forced movement, inter alia, from any place. The offence would be committed by any one who effects such abduction at any or all points of the route. In a given case, an abduction may attract both sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible. However, when some of the appellants are convicted under Section 365 simpliciter and others are convicted under Section 365 read with Section 109, then the position of those accused/appellants in regard to conviction under Section 364 must also be the same. However, this difference in the matter of conviction under Section 364, cannot advance the case of the appellants, as abduction whether it is with the aid of Section 109 or which is under Section 364 simpliciter, enables the Court to raise the presumption of murder, in the absence of any explanation offered within the meaning of Section 106 of the Evidence Act. In other words, while A4, A11, A15, A16 and A17 are guilty under Section 364 which is already found by the courts below, other appellants would be guilty under Section 364 read with Section 109 IPC on the basis that they have been actively aided the abduction. Also as far as A5, A6, A7, A8, A11 and A14 are concerned, there is the evidence of PW10 that when he saw the deceased in a clear state of wrongful confinement, as he was found tied on the first floor of the factory, 40 A B C D E F G H SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE A5, A6, A7, A8, A11 and A14 were present. They were also convicted under Sections 347 and 387 of the IPC. Also, in fact, on 30.12.2001, PW11 has deposed about three cars out of which the deceased emerged out of one of them, viz., the Ford Escort. A4, A11, A16 and A17 were referred in the evidence of PW 11 as emerging out of the car along with the deceased but it is quite clear that there were more persons than A4, A11, A16 and A17 who were involved in the abduction. In this regard, PW3 witnessed three persons pushing another into a Maruti Van early in the morning on 30.12.2001. No doubt there is also a man on the Motorcycle. Within hours when he is brought to the factory building, he comes out of a Ford Escort. There were two other cars which accompanied it. Under Section 362 of the IPC, abduction has been defined, inter alia, as compelling a person to go from any place. It, no doubt, also includes, such movement procured by deceitful means. The plot reveals the abduction, the illegal confinement, the death of the deceased and his subsequent cremation, the role of A3, A5, A6, A7, A8 and A14 in aiding the abduction, appears to be made out. It is also clear that A5, A6, A7, A8, A11 and A14 were involved in the wrongful confinement of the deceased. As far as A14 is concerned, there is no recovery, as such, effected from him under Section 27 of the Evidence Act and there is essentially the evidence of PW10. The same is position about A17, whose involvement has been referred to by PW11, the other accomplice. However, the accomplice witnesses, who were relied upon by two courts, are to be treated as credible witnesses and, even in the absence of corroborative evidence, in the facts and circumstances of this case, there is no reason to disturb that conviction. If that is so, even in the absence of any direct evidence relating to murder, the presumption of murder, being committed by the appellants would apply. In fact, the courts below drew a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis. [Para 153][131-G-H; 132-A-H; 133-D-G] Somasundaram alias Somu v. State Represented by Deputy Commissioner of Police (2016) 16 SCC 355 : [2016] 7 SCR 263; Siri Ram Batra and Others v. Financial Commissioner, Delhi and Others (2004) 12 41 A B C D E F G H 42 A B C D E F SUPREME COURT REPORTS [2020] 10 S.C.R. SCC 52 : [2004] 4 Suppl. SCR 470; Baldev Singh v. State of Punjab (1990) 4 SCC 692; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Others (1976) 2 SCC 17 : [1975] Suppl. SCR 281; Vijayan v. State of Kerala (1999) 3 SCC 54 : [1999] 1 SCR 659; Mohanlal Shamji Soni v. Union of India and Another (1991) Suppl. 1 SCC 271 : [1991] 1 SCR 712; Nanak Chand v. State of Punjab AIR 1955 SC 274 : [1955] 1 SCR 1201; Pramatha Nath Talukdar v. Saroj Ranjan Sarkar AIR 1962 SC 876 : [1962] 2 Suppl. SCR 297; Arjun Singh v. State of Himachal Pradesh AIR 2009 SC 1568 : [2009] 1 SCR 983; Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696 : [1971] 1 SCR 119; R.v. Baskerville 1916 (2) KB 658; Mohd. Husain Umar Kochra Etc. v. K.S. Dalipsinghji and Another Etc. (1969) 3 SCC 429 : [1969] 3 SCR 130; Chonampara Chellapan Etc. v. State of Kerala Etc. (1979) 4 SCC 312 : [1969] 3 SCR 130; Kehar Singh and Others v. State (Delhi Administration (1988) 3 SCC 609 : [1988] 2 Suppl. SCR 24; Ranganayaki v. State by Inspector of Police (2004) 12 SCC 521 : [2004] 5 Suppl. SCR 452; Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 SC 637 : [1957] SCR 953; Chandran and Others v. State of Kerala (2011) 5 SCC 161 : [2011] 8 SCR 273; Sucha Singh v. State of Punjab AIR 2001 SC 1436 : [2001] 2 SCR 644 – referred to. Case Law Reference [2016] 7 SCR 263 referred to Para 2 [2004] 4 Suppl. SCR 470 referred to Para 18 (1990) 4 SCC 692 G [1975] Suppl. SCR 281 [1999] 1 SCR 659 [1991] 1 SCR 712 referred to referred to referred to referred to Para 19 Para 20 Para 21 Para 22 [1955] 1 SCR 1201 referred to Para 33 H SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [1962] 2 Suppl. SCR 297 referred to [2009] 1 SCR 983 [1971] 1 SCR 119 [1969] 3 SCR 130 referred to referred to referred to [1988] 2 Suppl. SCR 24 referred to [2004] 5 Suppl. SCR 452 referred to [1957] SCR 953 referred to [1968] 2 SCR 641 [1971] 1 SCR 617 [2004] 6 Suppl. SCR 1 relied on relied on relied on [2011] 8 SCR 273 referred to [1998] 2 SCR 303 [2013] 3 SCR 1172 [2018] 13 SCR 405 [1977] 1 SCR 280 relied on relied on relied on relied on Para 44 Para 52 Para 55 Para 56 Para 56 Para 58 Para 61 Para 62 Para 63 Para 64 Para 67 Para 69 Para 70 Para 72 Para 72 [2000] 2 Suppl. SCR 712 referred to [2001] 2 SCR 644 referred to Para 142 Para 142 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 403 of 2010. From the Judgment and Order dated 06.10.2007 of the High Court of Judicature at Madras in Criminal Appeal No. 698 of 2004. With Criminal Appeal Nos. 827, 828 of 2013, 1504, 2006-2007 and 2008- 2009 of 2017. P. V. Yogeswaran, Ashish Kumar Upadhyay, Y. Lokesh, Ms. V. Susheatha, Babul Kumar, P. Abinesh Karthik, Arun Singh, Ms. V. Keerthana, B. Karunakaran, M. Tabish Zia, Anirudh J., S. Gowthaman, Aditya Kr. Choudhary, Aman Singh, Gurmehar Vaan Singh, Vaibhav Prasad Deo, Rajesh Singh Chauhan, M. Yogesh Kanna, Ms. Meha Aggarwal, S. Raja Rajeshwaran, Advs. for the appearing parties. 43 A B C D E F G H 44 A B C D E F G SUPREME COURT REPORTS [2020] 10 S.C.R. The Judgment of the Court was delivered by K. M. JOSEPH, J.

#1. Six appeals arise out of a common judgment rendered by the High Court confirming the conviction and sentence of the appellants by the Trial Court. The earliest of the aforesaid appeals, i.e., Criminal Appeal No. 403 of 2010, is filed by the fourth accused. Criminal Appeal No. 827 of 2013 and Criminal Appeal No. 828 of 2013 are filed by the third and the fifteenth accused, respectively. WHY THIS THREE-JUDGES BENCH?

#2. The appeals filed by the third, fourth and fifteenth accused came to be heard by a Bench of two learned Judges. There was a cleavage of opinion among the learned Judges. One learned Judge (Justice V. Gopala Gowda), by his Judgment, proceeded to acquit the accused while Justice Arun Mishra dismissed the appeals. The Judgment rendered by the two learned Judges is reported in Somasundaram alias Somu v. State Represented by Deputy Commissioner of Police1. After the judgment was rendered, it is that the other appeals came to be filed by the other accused. They are as follows: a. A5 and A8 have filed Criminal Appeal Nos. 2008 of 2017; b. A6 has filed Criminal Appeal No.1504 of 2017; c. A7, A11, A14, A16 and A17 have together filed Criminal Appeal No. 2006 of 2017; d. Though Criminal Appeal No.2007 of 2017 and Criminal Appeal No. 2009 of 2017 were also filed, subsequent to the hearing, applications have been filed seeking to withdraw the aforesaid two appeals and they are liable to be dismissed as withdrawn. THE PROSECUTION CASE

#3. On M.K. Balan (hereinafter referred to as ‘the deceased’, for short), who was an Ex. M.L.A., was reported to be missing by his son- PW1 after he went for his morning walk on 30.12.2001. On the basis of the complaint, law was set in motion. PW67-Inspector of Police, took over the investigation on 12.01.2002 from PW66. It was, in fact, PW66, who initially conducted investigation. PW66 has spoken about information of the absconding person being given to the Police Control Room and to H 1 (2016) 16 SCC 355 SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.] all Police Stations by wireless. He has sent photograph of absconding person to be published in the daily newspapers. Inquiry was conducted in hospitals. He has examined a large number of witnesses. It is, as noted, on 12.01.2002, further investigation was taken over by PW67- Deputy Superintendent of CBCID. The evidence of PW67 would show that from 13.01.2002, the Officer has examined several witnesses. According to the prosecution, the breakthrough came on the basis of information, as per which, the A5 (fifth accused) came to be arrested on 18.03.2002. On the very next day, A6 came to be arrested. Still, within the space of twenty-four hours, viz., on 20.03.2002, A7 came to be arrested. A8 was arrested on 22.03.2003. A1 was arrested on 23.03.2002. A3 was arrested on 25.03.2002. A4 came to be arrested on 09.04.2002. A15 was arrested on 25.04.2002. It is the prosecution case that the accused made confessional statements within the meaning of Section 27 of the Indian Evidence Act, 1872 (hereinafter referred to as ‘the Evidence Act’, for short) yielding information leading to recoveries. It is the case of the prosecution that the deceased had been abducted (though it is shown as kidnapped) on 30.01.2002, taken and kept in a factory premises which belonged to PW34-Krishna Pandi with whom PW10 and PW11 had become partners. A huge sum, running into several crores, motivated the accused to hatch the conspiracy to abduct the deceased. It was the further case of the prosecution that the accused decided to do away with the deceased in case he did not yield to the demand. As it transpired as the deceased did not yield, he was murdered while he was kept captive in the first floor of the vermicelli factory, which, as already noted, was being operated by PW34. A3 was noted as leader of the ADMK. A12, it was alleged, who was married to the A2, was made to speak in the voice of an AIADMK leader Shashikala to A3. In this, the A1 and A2 played a role. It is, according to the prosecution, on being so spurred by the command given by A12, apparently mimicking the voice of the AIADMK leader, A3 acts. A9 contacted PW10 and PW11. It is alleged that PW10 and PW11 were persuaded to search for houses. Not satisfied with many of the houses shown to A3 and A9, they finally found favour with the factory premises which is located in Mudichur. It is the further case of the prosecution that after he was murdered, the body of the deceased came to be cremated at the Corporation cremation ground on 01.01.2002 and, in order to accomplish the same, PW33-an employee working in a Government Hospital, was roped in by A3 to procure a false death certificate. Accordingly, PW33, it was alleged, 45 A B C D E F G H 46 A B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. approached PW32-a Medical Practitioner. The Medical Practitioner gives a death certificate wherein the name of a person is indicated in the certificate, and allegedly residing at an address, which, the Police, on investigation, found, was not the abode of the person. In other words, the name of a non-existing and a fictional person was used to concoct a death certificate and, under the cover of the same, the body of the deceased came to be cremated.

#4. On the basis of the charge-sheet and after complying with the formalities, the Trial Court framed charges against the accused. The following are the charges framed against the various accused as evident from the Trial Court Judgment: “The following charges were framed against the accused in this case: That during the month of November 2001, the 1st, 2nd and 3rd accused conspired together and discussed about the matter as to how the Ex.M.L.A. M.K. Balan could be kidnapped and extract money from him and it was decided to murder him in case if he refuses to pay any amount and that consequent upon such conspiracy on 30.12.01 early morning, he was kidnapped near MRC Nagar and he was illegally kept at T.K.P. Vermicelli factory at Mudichur and on account of committing him murder on 1.1.02 night at about 9:00 p.m., thereby a charge under section 120.B. IPC has been framed as against the accused 1 to 18 in this case. Secondly for the purpose fulfilling the object of such conspiracy, while the said Ex.M.L.A. M.K. Balan was walking in the morning on 30.12.01 near MRC Nagar, at the knife point he was kidnapped near Iyyapan temple at about 5.30 am by the accused 4,7,10,11,14,15,16 and 17 in the Maruti van bearing Regn. No.: TN-A-7484 and at that time the 15th accused went in front of that van in a Hero Honda to show the route for them and lastly the said M.K. Balan was kept illegally at Vermicelli factory belonging to one Krishnapandi at Mudichur road, thereby the said accused have been charged under Section 365 IPC and for abetment of the said offence the accused 1,2,3,5,6,8,9 and 13 to 18 accused in going in a car bearing Regn. No.: TN-10-F-5555 have been charged under Section 365 read with Section 109 IPC. Thirdly in order to fulfil the object of such conspiracy, in the said place on the said date the said M.K. Balan (Ex.M.L.A.) was tied with iron chain and rope in a cot and he was threatened to SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.] part with Rs.16 crores of Rupees or else to execute the document in respect of his properties in their favour, thereby the accused 1 to 11 and 14 to 18 have been charged under Section 387 IPC. Fourthly, in order to fulfil such conspiracy and in pursuant of the same at the instance and instigation of the accused 1 and 2, the 12th accused spoke to the third accused over phone by changing the voice as that of Smt. Sasikala uttering the words” if possible get the amount or else close him and come along with Senthil and meet me and Senthil would tell you everything later, thereby the said accused have been framed charges under Section 419, 420 and 387 IPC read with 109 IPC. Fifthly in order to fulfil the object of the said conspiracy and consequent upon the said occurrence on 1.1.02 night at about 9:00p.m. the accused 3,4,6 to 8,10,11 and 14 to 18 committed the murder of M.K. Balan who refused to pay any money or to execute any documents in respect of his properties, by tying a rope around the neck and tightened, thereby all the above said accused persons had committed the offence punishable under section 302 IPC. Likewise the accused 1,2,5,9,12 and 13 were charged under section 302 read with section 109 IPC for having committed the offence of abetment for the act of committing the murder. Sixthly, consequent upon the same on the same day in the said occurrence, with an object of extracting the property from the deceased M.K. Balan, he was kidnapped thereby accused 3 to 11 and 13 to 18 were framed charge under section 347 and 364 IPC and for being abetment for the said offence, the accused 1,2 and 12 have been framed charge under section 347 read with 109 and 364 read with 109 IPC. Seventhly, after committing the murder of the deceased M.K. Balan, the body was taken to the cremation ground and cremated in Perambur cremation ground by getting false death certificate as if one Rajamani Chettiar died due to heart ailment and that therefore by suppressing the real facts in order to screen the crime, accused 8,10,11 and 13 to 18 have been framed charge under section 201 IPC.”

#5. The prosecution has sought to discharge its burden by examining 67 witnesses. It has also produced and proved a large number of 47 A B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. documents (P1 to P86) and also material objects (MO1 to MO39). Five witnesses were examined by the accused. D1 to D8 were proved on their behalf. The Trial Court, on appreciation of the evidence, found merit in the case of the prosecution, except in regard to the A12 and A18. Resultantly, the Trial Court convicted the accused as follows: (i) (ii) A1 and A2 were found guilty of the offences under Sections 120B of The Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’, for short), Section 365 read with Section 109 of the IPC, Section 387 of the IPC, Section 302 read with Section 109 of the IPC, Section 347 read with 109 of the IPC and under Section 364 read with Section 109 of the IPC. A3 is found to have acted upon the conspiracy of A1 and A2. He was found guilty of the offences under Section 365 read with Section 109 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC. He was acquitted under Section 120B of the IPC. (See paragraph 194 of the Trial Court Judgment); (iii) A4 was found guilty of the offences under Section 365 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC. He was acquitted under Section 120B of the IPC; (iv) A5 was found guilty under Section 365 read with Section 109 of the IPC, Section 387 of the IPC, Section 302 read with Section 109 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC. He was, however, acquitted under Section 120B of the IPC. (v) A6 was found guilty under Section 365 read with Section 109 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC. He stood acquitted under Section 120B of the IPC; (vi) A7 was found guilty under Section 365 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the 48 A B C D E F G H SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.] 49 IPC, Section 364 of the IPC and Section 201 of the IPC. He stood acquitted under Section 120B of the IPC; A (vii) A8 was found guilty under Section 365 read with Section 109 of the IPC, Section 387 of the IPC, Section 302 read with Section 109 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC and he stood acquitted under Section 120B of the IPC; (viii) A11, who is one of the appellants before us, was convicted, Section 365 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC and was acquitted under Section 120B of the IPC; (ix) A12 was acquitted of all the charges; (x) A14, A15, A16 and A17 were convicted under Section 365 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC and the charge under Section 120B of the IPC was found not proved against them and they stood acquitted.

#6. It is necessary to notice the details of the findings against each of the accused (appellants): “211. The accused 3,6 and 8 for having abetted the crime of conspiracy of the accused 1 and 2, on 30.12.01 at about 5:30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC and after the murder of the said M.K. Balan, former M.L.A., the body was cremated at the crematorium at Erukkancherry, Perambur and B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. with a view to screen the traces and giving false information, committed the offence under section 201 IPC and accordingly they are found guilty of the above said offences.

#212. In order to fulfil the object of on 30.12.01 at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC conspiracy of the accused 1 and 2, the 4th accused has been charged for the above said offences.

#213. The 5th accused is found guilty of the offences for having fulfilled the conspiracy of the accused 1 and 2 on 30.12.01 at about 5:30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC and after the murder of the said M.K. Balan, former MLA, the body was cremated at the crematorium at Erukkancherry, Perambur and with a view to screen the traces and giving false information, committed the offence under section 201 IPC and accordingly he is found guilty of the above said offences. 50 A B C D E F G H SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.]

#214. The 7th, 10th, 11th and 14th accused were charged for the offences for having colluded with the accused 1 and 2 in fulfilling their conspiracy by stating that on 30.12.01 at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former MLA, committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC and after the murder of the said M.K. Balan, former M.L.A., the body was cremated at the crematorium at Erukkancherry, Perambur and with a view to screen the traces and giving false information, committed the offence under section 201 IPC and accordingly, they are found guilty of the above said offences as decided in this case.

#215. It is stated as against the accused 9 and 13 that for fulfilling the object of conspiracy of the accused 1 and 2 on 30.12.1 at about 5.30 a.m. the former M.L.A. M.K. Balan was kidnapped and kept in a secret place at Vermicelli factory at Mudichur road, Tambaram, committed the offence under section 365 read with 109 IPC and for having made an attempt to extract money or property from the said M.K. Balan, former M.L.A., committed the offence under section 387 IPC and when it was not able to get the same, by committing the murder of the said M.K. Balan, committed the offence under section 302 IPC and before committing murder him, for having kept him in a secret place unlawfully and illegally, committed the offence under section 347 IPC and for having kidnapped him for the purpose of murdering him, committed the offence under section 364 IPC and accordingly they were found guilty of the above said offences.”

#7. The sentencing is as follows: “220. Further the accused 3, 6 and 8 are convicted for the offence under section 365 read with 109 IPC and sentenced to 51 A B C D E F G H 52 A B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. undergo 7 years RI and to pay fine of Rs. 5000/- each in default to undergo one year RI each; convicting them for the offence under section 387 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI each and that convincing them for the offence under section 302 IPC and sentencing them to undergo life imprisonment and to pay fine of Rs. 50000/- each and convicting them for the offence under section 347 IPC and sentencing them to undergo three years RI each and to pay fine of Rs. 5000/- in default to undergo six months RI each; also convicting them for the offence under section 364 IPC and sentencing them to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI each; convicting them for the offence under section 201 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 10000/- in default to undergo one year RI each and that the total fine amount imposed on them each Rs. 80000/- (Rupees eighty thousand only) and that it is ordered that all the sentences imposed on these accused shall run concurrently.

#221. The 4th accused is convicted for the offence under section 365 IPC and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- and in default to undergo one year RI and convicting him for the offence under section 387 IPC and sentenced to undergo 7 years RI and to pay fine of Rs.5000/- in default to undergo one year RI; that convicting him for the offence under section 302 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs. 50,000/- convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years and to pay fine of Rs. 5000/- in default to undergo six months RI; convicting him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo 2 years RI and that it is ordered that all the sentences imposed on this accused shall run concurrently (total fine amount imposed on him is Rs. 70,000/- Rupees seventy thousand only).

#222. The 5th accused is convicted for the offence under Section 365 read with 109 IPC and sentenced to undergo 7 years RI and to pay fine of Rs.5000/- in default to undergo one year RI; convicting him for the offence under section 387 IPC and sentencing him to undergo 7 years RI and to pay fine of SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.] Rs.5000/- in default to undergo one year RI; convicting him for the offence under section 302 IPC read with 109 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs.50,000/- convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI and convicting him for the offence under section 364 IPC and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI; convicting him for the offence under section 201 IPC and sentencing him to undergo 7 years RI and to pay fine of Rs. 10,000/- in default to undergo one year RI and that total fine imposed on this accused is Rs. 80,000/- (Rupees eighty thousand only) and that all the sentences imposed on this accused shall run concurrently;

#223. The 9th accused is convicted for the offence under section 365 read with 109 IPC and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI, convicting him for the offence under section 387 IPC and sentencing him to undergo 7 years RI and to pay fine of Rs.5000/- in default to undergo one year RI; convicting him for the offence under section 302 read with 109 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs. 50,000/- and also convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI; and also convicting the accused for the offence under section 364 IPC and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo 2 years RI as decided. It is ordered that all the sentences imposed on him in this case shall run concurrently (total fine amount is Rs. Seventy thousand only).

#224. Further the 13th accused is convicted for the offence under section 365 read with 109 IPC and sentenced to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI; convicting the accused for the offence under section 302 read with 109 IPC and sentencing him to undergo life imprisonment and to pay fine of Rs. 50000/- and also convicting him for the offence under section 347 IPC and sentencing him to undergo 3 years RI and to pay fine of Rs. 5000/- in default to 53 A B C D E F G H 54 A B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. undergo six months RI; convicting him for the offence under section 364 IPC and sentencing him to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years RI; convicting him for the offence under section 201 IPC and sentencing him to undergo 7 years RI and to pay fine of Rs. 10000/- in default to undergo one year RI as ordered. All the sentences imposed on him shall run concurrently. (Total fine amount imposed on this accused is Rs. Seventy five only). It is further ordered that this 13th accused shall undergo the sentences imposed on him in respect of the case in S.C. No. 206/03 along with the sentences imposed on him in this case concurrently.

#225. Further the accused 7,10,11,14,15,16 and 17 are convicted for the offence under section 365 IPC and sentenced to undergo seven years RI and to pay fine of Rs.5000/- in default to undergo one year RI each; convicting them for the offence under section 387 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 5000/- in default to undergo one year RI each; convicting them for the offence under section 302 IPC and sentencing them to undergo life imprisonment and to pay fine of Rs. 50000/- each and also convicting them for the offence under section 347 IPC and sentencing them to undergo 3 years RI and to pay fine of Rs. 5000/- in default to undergo six months RI each; convicting them for the offence under section 364 IPC and sentencing them to undergo 10 years RI and to pay fine of Rs. 5000/- in default to undergo two years each; convicting them for the offence under section 201 IPC and sentencing them to undergo 7 years RI and to pay fine of Rs. 10,000/- in default to undergo one year RI each as decided. (The total fine amount being Rs. 80,000/- each) All the sentences imposed on these accused shall run concurrently as ordered.”

#8. The High Court confirmed the judgment of the Trial Court except as regards A10 who was acquitted.

#9. We heard the learned Counsel for the appellants.

#10. We have also heard the learned Counsel appearing for the respondent-State in all the appeals.

#11. Learned Counsel for A3 would submit that the case of the prosecution was based on the theory of conspiracy. It is accordingly that SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.] the charge under Section 120B was framed against the accused including A3. The case of the prosecution in this regard was, A12, who was married to A2, made phone calls to A3. A3 was told over phone by A12 allegedly in the voice of Shashikala that A1 and A2 would meet A3 and he was asked to do what they would ask him to do. There were further calls. In fact, the conspiracy was, according to the prosecution, hatched in the minds of A1 and A2. A1 flaunted his proximity to M.K. Stalin (a political leader) stating that he was about to marry his daughter. A2 was in dire financial straits. He had contracted an inter-religious marriage with A12. They hit upon the idea of abducting the deceased and to compel him to part with a large sum of money (Rs.16 crores) and, in case he refused, to do away with him. It is pointed out that the Trial Court has disbelieved the case of the prosecution relating to criminal conspiracy which culminated in the court acquitting A12 of the charge against her. The appellant also stood acquitted under Section 120B of the IPC. The entire edifice of the prosecution case was built on the alleged criminal conspiracy which involved A12. Once this edifice was knocked out by the acquittal of A12, the superstructure sought to be built by the prosecution must necessarily fall to the ground.

#12. Next, it is pointed out that the prosecution case is otherwise based on the testimony of PW10 and PW11. He would point out that PW10 and PW11 were unreliable witnesses. It is clear that PW10 and PW11 were accomplices. They were untrustworthy witnesses. It is pointed out that it is settled law that the court would not act on the deposition of accomplices unless they are found reliable and, furthermore, there is corroboration of their testimony from other reliable evidence. Neither are PW10 and PW11 reliable nor is there any corroborative evidence forthcoming in this case, it is submitted. As far as conviction employing Section 109 of the IPC is concerned, learned Counsel submitted that in order that Section 109 may apply apart from mere conspiracy, some act or illegal omission in pursuance of the so-called conspiracy is indispensable. He would further submit that though V. K. Shashikala was interrogated by PW67-Officer, she has not been examined as a witness. There is no evidence relating to what her voice is. Unless the voice of Shashikala was known to A12, it would be well- nigh impossible to believe that the A12 could speak in her voice to A3 which ultimately is what the prosecution case is all about. There is no evidence of Shashikala having made a public speech. Though A3 may be familiar with her voice being a party functionary, it hardly suffices as 55 A B C D E F G H 56 A B C D E F G SUPREME COURT REPORTS [2020] 10 S.C.R. there is no evidence to conclude that A12 was familiar with her voice without which it is incredible that she could mimic Shashikala.

#13. He would further contend that in this case once the prosecution case relating to conspiracy under Section 120B of the IPC failed, reliance placed on Section 109 of the IPC, which contemplates a conspiracy and something more would have no legs to stand on. Leave alone any illegal act or omission based on a conspiracy, no conspiracy itself is proved. Therefore, Section 109 of the IPC can have no play. Regarding the recovery of Maruti Zen car at the instance of A3, it is pointed out that A3 is not the owner of the car. PW10 and PW11 were active participants. They were not tendered pardon under Section 306 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the CrPC’ for short). He would further contend that the evidence of PW3 does not establish involvement of A3. PW3 has merely stated that at 05.30 A.M., he saw three persons and that he was at the distance of 75 meters when he saw three persons pushing another person into a Maruti Van. Evidence of PW1, who is the son of the deceased, would show that the shoes allegedly recovered as was worn by the deceased, did not belong to his father. The case of abduction is not proved on the basis of the evidence tendered by PW3. The Van, which was recovered, has not been identified. The Motorcycle, which was recovered, again was not identified. The recovery was also not proved, he contends. The prosecution has failed to prove that A3 brought the deceased to the factory. PW34, on whose testimony prosecution has placed considerable reliance, is also an accomplice. He drew our attention to the judgment2 of Justice Arun Mishra in paragraph 115, which reads as follows: “115. With respect to charge of murder against A-3 and A- 4 it is apparent that MO 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 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 H 2 (2016) 16 SCC 355 SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.] 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 of M.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.”

#14. He complains that this approach involves shifting of the burden to be shouldered by the prosecution to the accused. Since abduction itself has not been proved, in order that the prosecution should succeed in the matter of securing conviction under Section 302 of the IPC, the prosecution ought to have proved the case as set out by it. A chain was allegedly used to commit murder of the deceased. A14 and A16 were in jail. The chain and the nylon rope were recovered on the basis of the statements given by them. He would point out that however the said recoveries cannot be used against the other accused. He reminds the court of the backdrop in which the investigation proceeded following the missing of a high-profile person, as the deceased was an Ex-MLA. A Habeas Corpus Petition was filed in the Madras High Court. There was much pressure. The matter engaged the attention of the media also. This forced the Investigating Officers to manufacture the version indeed in order to cater to the general public. PW 21 and PW35 are Police Officers. They are alleged to have identified some of the accused as loitering in a public road after midnight on 01.01.2002, which was immediately after the alleged commission of the crimes including murder. But this cannot result in conviction of A3. PW12 and PW19 are prosecution witnesses produced to prove the case under Section 201 of the IPC, viz., destruction of the body of the deceased after the commission of the crime, PW12 and PW19 worked at the cremation ground. It is pointed out that as far as PW12 is concerned, he has turned hostile. It is pointed out, in this regard, that the ashes were not recovered. The bones of the deceased person were not recovered or sent for scientific investigation. 57 A B C D E F G

#15. He would submit that the body of the deceased itself is not found or not produced, and therefore, the case of the prosecution cannot H 58 A B C D E F G H SUPREME COURT REPORTS [2020] 10 S.C.R. be accepted. There is evidence to show that for a person above 60 years, a death certificate is not required for conducting cremation. This is the submission made in the context of evidence relied on by both the courts and also a learned Single Judge of this Court to conclude that A3 was involved in procuring a false death certificate. According to the prosecution, PW32-Doctor was approached by PW33 at the instance of A3. It was mentioned to the Doctor that another person had passed away. Believing PW33, PW32-Doctor has deposed that he gave a death certificate. According to PW19, the dead body was cremated in the night on 01.01.2002. The death certificate is, no doubt, dated 02.01.2002. [But what weighed with the courts is the role played by A3 in setting up a false case that a person, other than deceased, involved in this case, had passed away and securing a death certificate which paved the way for cremation of the body of the deceased resulting in the destruction of the evidence relating to the body of the deceased].

#16. Learned Counsel for the A3 pointed out that A3 must be connected with the matter as sought to be done by both courts which was not the case.

#17. Regarding the recovery effected from A3, it is pointed out that, MO12 is the Maruti Zen Car. He would point out that the relevance of the recovery (apart from the infirmity attached with the recovery) is not established. MO28 are the audio cassettes. Regarding the same, it is pointed out that it was incumbent upon the prosecution to establish the content by providing the transcript. The audio was supposed to contain conversation of the deceased but it cannot be relied on in the absence of a transcript. The relevancy of the content has not been established. The voice of the speaker has not been proved. Regarding MO12-Maruti Zen Car, recovery at the instance of A3, it is contended that the evidence would show that the owner of the said car had given MO12 to A3 in November, 2001 and A3 has given back the car in February, 2002. There is no particular role which is attributed to the Maruti Zen Car.

#18. Regarding audio evidence, it is submitted that it did not satisfy the requirements of Section 3 of the Evidence Act. MO33 is a bit of paper on which, in the alleged handwriting of A1, the message from A12 to A3 was written [it will be remembered that it is the case of the prosecution that A12, imitating the voice of Shashikala, had commanded A3, a party functionary, to oblige A1 and A2 and this set in motion the chain of events culminating in the gruesome murder of the deceased]. It SOMASUNDARAM @ SOMU v. THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE [K. M. JOSEPH, J.] is the acquittal of A12 who allegedly messaged to A3, which is the subject matter of MO33, which is pressed before us to remove any importance it may otherwise have had. Till 10.04.2002, the evidence of PW67 would show that it was not sealed thus robbing the material object of any legal efficacy it may have otherwise had, it is contended. It is further contended that the voice of the deceased, is not proved through PW1. Learned Counsel would submit that if statement under Section 27 is made and a person making it is acquitted, such statement cannot be used against other accused. Learned Counsel would contend that in the case of a conviction employing Section 109 of the IPC, the principal offender must be identified. He drew our attention in regard to the judgment reported in Siri Ram Batra and others v. Financial Commissioner, Delhi and others3. He pointed out that Justice Arun Mishra, has proceeded on the basis that a confession under Section 164 of the CrPC is a substantive piece of evidence, which, it is not. In this regard, our attention is drawn to the judgments of this Court. In George and others v. State of Kerala and another4, it was held as follows: “36. We may now turn to the evidence of PW 50, detailed earlier. From the judgment of the trial court we notice that the substantial parts of its comments, (quoted earlier) are based on his statement recorded under Section 164 CrPC and not his evidence in court. The said statement was treated as substantive evidence; as would be evident from the following, amongst other observations made by the learned trial court: “If Ext. P-42 (the statement recorded under Section 164 CrPC) is found to be a genuine statement it can be used as an important piece of evidence to connect the accused with the crime.” In making the above and similar comments the trial court again ignored a fundamental rule of criminal jurisprudence that a statement of a witness recorded under Section 164 CrPC cannot be used as substantive evidence and can be used only for the purpose of contradicting or corroborating him.” (Emphasis supplied)