SC:If murder follows abduction, presumption is that abductor has murdered

The Hon’ble Supreme Court, on 3rd June 2020, in the matter of Somasundaram @ Somu v. The State rep. by the Deputy Commissioner of Police pronounced that 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 abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer.

The Hon’ble Supreme Court also observed that:

Section 149 of the IPC declares the Principle of Vicarious Criminal Liability. Upon an offence being committed by any member of an unlawful assembly in prosecution of the common object, every person, who at the time of the offence being committed is a member of such assembly is guilty of such offence. (Para 32)

Abetment of a thing is defined in Section 107 of IPC and the concept of “abettor” is explained in Section 108 of the IPC. Sections 107 and 108 of the IPC must be read together to glean the intention of the Law Giver. So read, abetment can happen in three situations (a) It may happen when a person instigates another person to do the thing which is abetted; (b) Secondly, abetment takes place if a person engages with one or more other person or persons in any conspiracy for doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing. Finally, there is abetment when a person intentionally aids, by an act or omission, the doing of that act. (Para 43)

In order that the act or offence, be committed within the meaning of Section 109 of the IPC, in consequence of the abetment, it must be as a consequence of the instigation or in pursuance of the conspiracy or with the aid which constitutes the abetment. Explanation to Section 109 of the IPC must be read in conjunction with Section 107 of the IPC which creates the offence of abetting. As far as instigating any person to do an act, it is relatable to the first part of Section 107 which declares that abetment is done when the person who abets instigates any person to do that thing. (Para 47)

Anything done which facilitates the commission of the criminal act and promotes the commission of the act, would bring the person within the scope of abetment. (Para 49)

All that is required is that the abettor also engages in the conspiracy which must be understood as meaning participate in the concert between two or more others even if he may not have seen or known, by face or otherwise, one or more persons who are privy to the conspiracy. Thus, based on their involvement constituting abetment, a person or any number of persons without even knowing the identity of all the principal participants to the conspiracy, can be prosecuted with the aid of Section 107 read with Section 108 of the IPC. (Para 50)

The offence of abetment is punishable even if the act which is abetted is not committed. (Para 53)

At the heart of the offence of abetment, however, is the presence of any of the three requirements in Section 107 of the IPC. The key and indispensable elements under the law to constitute abetment is instigation, conspiracy or the intentional aiding by any act or illegal omission, the doing of the thing. The law does not permit the abettor to escape punishment for abetment even if the actual player who commits the offence is not criminally liable for the actual act which results in the commission of an offence (See in this regard, the situation contemplated in illustrations in Explanation III of Section 108 of the IPC). Equally, there need not be meeting of minds between all the persons involved in a conspiracy and it is sufficient if a person is engaged in the conspiracy following which the offence is committed (See Explanation V to Section 108 of the IPC). This means that it is not even necessary that the persons who are engaged in the conspiracy, to even know the identity, leave alone physically meet the other players. There can be any number of persons depending on their guilty mind and acts or omissions which may render them liable. (Para 54)

The combined result of Sections 133 read with illustration (b) to Section 114 of Evidence Act is that the Courts have evolved, as a rule of prudence, the requirement that it would be unsafe to convict an accused solely based on uncorroborated testimony of an accomplice. The corroboration must be in relation to the material particulars of the testimony of an accomplice. It is clear that an accomplice would be familiar with the general outline of the crime as he would be one who has participated in the same and therefore, indeed, be familiar with the matter in general terms. The connecting link between a particular accused and the crime, is where corroboration of the testimony of an accomplice would assume crucial significance. The evidence of an accomplice must point to the involvement of a particular accused. It would, no doubt, be sufficient, if his testimony in conjunction with other relevant evidence unmistakably makes out the case for convicting an accused. (Para 65)

Every material circumstance against the accused need not be independently confirmed. Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case. The testimony of one accomplice cannot be, ordinarily, be supported by the testimony of another approver. (Para 66)

In the common run of cases, the rule of prudence which has evolved into a principle of law is that an accomplice, to be believed, he must be corroborated in material particulars of his testimony. The evidence which is used to corroborate an accomplice need not be a direct evidence and can be in the form of circumstantial evidence. (Para 66)

An accomplice is in many cases, pardoned and he becomes what is known as an approver. An elaborate procedure for making a person an approver, has been set out in Section 306 of the CrPC. Briefly, the person is proposed as an approver. The exercise is undertaken before the competent Magistrate. His evidence is recorded. He receives pardon in exchange for the undertaking that he will give an unvarnished version of the events in which he is a participant in the crime. He would expose himself to proceedings under Section 308 of the CrPC. Section 308 contemplates that if such person has not complied with the condition on which the tender of pardon was given either by wilfully concealing anything essential or by giving false evidence, he can be put on trial for the offence in respect to which the pardon was so tendered or for any other offence of which he appears to be a guilty in connection with the same matters. This is besides the liability to be proceeded against for the offence of perjury. Sub-section (2) of Section 308 declares that any statement which is given by the person accepting the tender of pardon and recorded under Section 164 and Section 306 can be used against him as evidence in the trial under Section 308(1) of the CrPC. An accomplice or an approver are competent witnesses. An approver is an accomplice, who has received pardon within the meaning of Section 306. (Para 67)

The competency of an accomplice is not impaired, though, he could have been tried jointly with the accused and instead of so being tried, he has been made a witness for the prosecution. (Para 67)

In a case where a witness, in his statement under Section 164 of the CrPC, makes culpability of the accused beyond doubt but when he is put on the witness stand in the trial, he does a complete somersault, as the statement under Section 164 is not substantial evidence then what would be the position? The substantive evidence is the evidence rendered in the Court. Should there be no other evidence against the accused, it would be impermissible to convict the accused on the basis of the statement under Section 164. (Para 71)

It is clear that kidnapping differs from abduction. Kidnapping is of two kinds. Kidnapping from India involves taking a person against his consent or consent of legally authorised person out of India (Section 360). Kidnapping from lawful custody is occasioned if a male below 16 years or female below 18 years or person of unsound mind is taken out of custody of lawful guardian without his consent (Section 361). Abduction, as defined in Section 362 of the IPC, occurs when by force or deceitful means, a person is induced to go from any place. In this case, under Sections 364 and 365, though, it could be kidnapping and abduction, what is involved is abduction. (Para 79)

Section 364 of the IPC, more graver than Section 365 of the IPC, occurs when abduction, inter alia, is done with the intention to commit murder or that he is so disposed of so as to put the abducted person in danger of being murdered. Section 365 of the IPC is attracted when the abduction takes place to cause the abducted person to be secretly and wrongfully confined. (Para 80)

It is true that in a given case, a person may be abducted to be secretly and wrongfully confined and also to commit murder. Such a situation may attract both Sections 364 and 365 of the IPC. (Para 81)

A statement under Section 27 of the Evidence Act is not only about the thing as such which is discovered consequent upon the statement but the knowledge attributable to the person who makes the statement about the matter, discovered, based on the statement. (Para 27 at Pg. 153)

The abduction followed by murder in appropriate cases can enable a court to presume that the abductor is the murderer. Now 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 and logical 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. (Para 59 at Pg. 188)

The aforesaid principle would also apply to those persons who illegally confine the person who stands abducted even if there is no evidence that they have themselves carried out the abduction. (Para 59 at Pg. 191-192)

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. Nobody has a case that the deceased died a natural death. (Para 60 at Pg. 192)

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 has shared a common object and thus become vicariously liable and if there be 5 or more persons under Section 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. (Para 70 at Pg. 199-200)

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. We have already noticed that in a given case, an abduction may attract both sections 364 and 365. The distinguishing feature between the two kinds of abduction, is the difference in the intent with which the abduction, inter alia (as Sections 364 and 365 also deal with kidnapping), is carried out. But so far as the intention attracts both provisions in a given case, conviction under both sections is not impermissible. 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. (Para 70 at Pg. 200-201)

Copy of judgement: Judgement_03-Jun-2020

-Adv. Tushar Kaushik

Leave a Reply

Your email address will not be published. Required fields are marked *