Supreme Court: In a reference from a 2-judge bench verdict where Justice V. Gopala Gowda acquitted and Justice Arun Mishra convicted the accused in the abduction and murder of former Tamil Nadu MLA MK Balan, the 3-judge bench of RF Nariman, KM Joseph and V. Ramasubramanian, JJ agreed with Justice Mishra’s opinion and upheld the conviction.

In the September 2016 verdict Justice V. Gopala Gowda had held that for Section 109 of IPC, it is not enough to show a conspiracy as it has to be taken a step further. He said that it needs to be proved that an act is committed in furtherance of that conspiracy. Whereas Justice Arun Mishra held that 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 3-judge bench in the hearing the reference noticed that it was established that the deceased was confined illegally and that his body was cremated under a fictitious name. There was, however, no direct evidence that the accused had committed the murder of deceased by strangulating him. However, the recovery of a nylon rope and chain undoubtedly strengthens the prosecution case.

“A carefully thought out criminal plan has led to the cruel snuffing out of precious life. The players thought it through meticulously by destroying the corpus delicti by cremation.”

The Court further explained that 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.

“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.”

In the light of the charge of abduction being proved, the Court held that 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 have drawn a presumption about murder being committed. This is a presumption which cannot be said to be drawn without any basis.

[Somasundaram v. State, CRIMINAL APPEAL NO. 403 OF 2010, decided on 04.06.2020]

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