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Impermissible to convict the accused on sole statement under Sec. 164 Cr.P.C., Supreme Court

The SC on June 03, 2020 {SOMASUNDARAM @ SOMU vs THE STATE REP. BY THE DEPUTY COMMISSIONER OF POLICE} held that 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. It was held that the corroboration must be in relation to the material particulars of the testimony of an accomplice. 

It was held by the Bench, comprising of Justice R.F. Nariman, Justice K.M. Joseph and Justice V. Ramasubramanian, that every material circumstance against the accused need not be independently confirmed. It was held that Corroboration must be such that it renders the testimony of the approver believable in the facts and circumstances of each case.

It was observed that an accomplice is in many cases, pardoned and he becomes what is known as an approver. Further held that an elaborate procedure for making a person an approver, has been set out in Section 306 of the CrPC.

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 SC held that substantive evidence is the evidence rendered in the Court. It was held that 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.

It was also held that abetment, as defined is a substantive offence. It was held that the punishment for it varies according to different circumstances. It was also held that if the act which is abetted is done in pursuance to the abetment, the punishment is graver. It was held that the offence of abetment is punishable even if the act which is abetted is not committed.

The SC held that 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. It was held that 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. It was also held that 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).

In the present case before the SC, appeals arose out of a common judgment rendered by the High Court confirming the conviction, and sentence of the appellants by the Trial Court - including life imprisonment.

The SC held that this is a case where the accused have not only carried out a grave crime of murder but they have also attempted to efface the most important evidence relating to the same, viz., the corpus delicti. The Court rejected the contention that the non-production of the body is fatal to the prosecution case.

It was held that the fact that the appellants have been acquitted under Section 120B will not, in Court's view, extricate them from criminal liability for their acts which would constitute substantive offences under Sections 302, 347 and 387 of the IPC.

The SC also held that in this connection as regards the lack of a charge or defect in a charge is concerned, it is one which is essentially intertwined with the question of prejudice to the accused.  The Court held that it does not think that prejudice is caused in this regard in the facts.

In the present case, earlier there was a cleavage of opinion among the Judges of the SC. One learned Judge (Justice V. Gopala Gowda), by his Judgment, proceeded to acquit the accused while Justice Arun Mishra dismissed the appeals. For that reason the present appeals were listed for decision before the present three-judges Bench.

The present SC three-judges Bench ultimately dismissed the Criminal Appeals. The bail bonds of the appellants who had been released on bail under orders of the Court were cancelled and they were directed to surrender within three weeks to serve their sentences.

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