Case BriefsSupreme Court

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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September 2016 split verdict

Case BriefsForeign Courts

Pakistan Supreme Court: A Full Bench of Manzoor Ahmad Malik, Syed Mansoor Ali Shah and Qazi Muhammad Amin Ahmed, JJ. allowed an appeal seeking acquittal of a murder charge in the absence of satisfactory evidence.

The appellant was in receipt of a guilty verdict. He was indicted for committing the murder of his wife Kausar Bibi (deceased). The said verdict was affirmed by the High Court judgment which was challenged through this appeal. Prosecution case was structured on the statement of the deceased’s brother Muhammad Arshad, according to whom, the marriage of the appellant was on the rocks as deceased had not brought a dowry to accused-appellants expectations. Upon a message by the deceased, Muhammad Arshad visited her to take her back. However, their house was attacked that night and Kausar Bibi was killed. Upon indictment, appellant blamed dacoits to have murdered the deceased.  The trial Judge convicted the appellant under Section 302(b) of Pakistan Penal Code, 1860 and sentenced him to death along with a direction to pay Rs 100,000.

Learned counsel for the appellant Nawab Ali Mayo, contended that the appellant should not be convicted merely upon his failure to satisfactorily explain as to what happened on that night. He further added that the presence of witnesses was extremely doubtful. He pleaded that it would have been unsafe to maintain conviction. Moreover, a co-accused was acquitted on the same grounds but the appellant was convicted.

Contrarily, the learned counsel for the respondent Mehmud ul Islam, vehemently defended appellant’s conviction on the ground that plea advanced by him was preposterous and was rightly rejected which in retrospect established his presence at the spot, thus there was no space to entertain any hypothesis of his innocence.

The Court observed that silence or implausible explanation could not equate with failure within the contemplation of Article 121 of Qanoon-e-Shahadat Order, 1984 which dealt with the exceptions of a case. Further, the appellant had not denied his presence, but these factors by itself could not hypothesize presumption of his guilt in the absence of positive proof. It was opined that suspicions are not a substitute for legal proof, and a suspect cannot be condemned on the basis of moral satisfaction in the absence of evidentiary certainty. Furthermore, the Court observed that convicting a co-accused on the same ground on which another accused has been acquitted, was wrong and it required immediate ratification. Thus, the Court allowed the appeal and ordered the immediate release of the appellant.[Muhammad Pervaiz v. State, 2019 SCC OnLine Pak SC 13, decided on 06-05-2019]