SOMASUNDARAM @ SOMU versus STATE REP. BY DY. COMM. OF POLICE

Citation: [2016] 7 S.C.R. 263 · Decided: 28-09-2016 · Supreme Court of India · Bench: V. GOPALA GOWDA · Disposal: Matter referred to larger bench

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2016] 7 S.C.R. 263 
SOMASUNDARAM @ SOMU 
v. 
STATE REP. BY DY. COMM. OF POLICE 
(Criminal Appeal No. 403 of20 I 0) 
SEPTEMBER 28, 2016 
[V. GOPALA GOWDA AND ARUN MISHRA, JJ.] 
Penal Code, J860 - ss. J20B, 3651J09, 3871J09, 3021J09, 3471 
109, 3641J09 and 20J - Prosecution under - Of the appellants-
accused (A-3, A-4 and A-J 5), alongwith other J 5 accused - For 
entering into criminal conspiracy for abduction and murder of the 
deceased - Trial court acquitted A-J2 and A-J8 and convicted rest 
of the accused mainly relying on the evidence of PWs JO and 11 -
High Court confirmed the order of trial court except that of A-JO -
Appeal by A-3, A-4 and A-J 5 - Held: Difference of opinion between 
the Judges - Per V. Gopala Gowda, J. : Evidence of PWs JO and 11 
are not reliable and hence cannot forlJ) basis for conviction of 
appellants-accused - Also in view of their acquittal under s. l 20B 
and in absence of establishing their involvement individually in each 
offence, they could not have been convicted for the offences of 
abduction and murder - The appellants-accused are entitled for 
acquittal - Per Arun Mishra, J.: Involvement of the appe/lants-
accused in the commission of offence is established by the evidence 
of PWs JO and 11 and also by other evidence - When charge ul 
s.J09 is established, mere acquittal uls. J 20B is of no avail to the 
appellants-accused - Conviction of the appellants-accused affirmed. 
Per V. Gopala Gowda, J. : 
Allowing the appeal, 
HELD : 1. The case of the prosecution as far as A-3 and A-
4 are concerned rests heavily on the evidence of PW-10 and PW-
11, whose evidence is supported by the evidence of PW-33 and 
PW-34. From a perusal of the evidence of PW-10 and PW-11, it 
becomes clear that they are accomplice witnesses. PW-10 and 
PW-11 have not been granted pardon by any Court and have been 
arrayed as prosecution witnesses. The mere fact that pardon bas 
not been tendered by a court of law, does not make an accomplice 
263 
A 
B 
c 
D 
E 
F 
G 
H 
264 
A 
B 
c 
D 
E 
F 
G 
H 
SUPREME COURT REPORTS 
[2016] 7 S.C.R. 
cease being an accomplice. Thus, PW-10 and PW-11 being 
accomplice witnesses, their evidence must be treated as such, 
and subject to the same test of reliability of the evidence of an 
accomplice or approver are subject to. While the evidence of al} 
accomplice can be used to convict an accused, as a rule of 
prudence, the Court must first ensure that the testimony of the 
accomplice is corroborated in material particulars by adducing 
independent evidence. It is also a well settled position of law 
that the evidence of two accomplices cannot be used to 
corroborate with each other. The independent evidence must be 
such that it corroborates with the testimony of the accomplice in 
material particulars, that is, the corroboration must be both in 
respect of the crime as well as the identity of the accused. This 
particular test assumes significance when there is more than one 
accused in a case. [Paras 50, 55, 57, 59, 61 and 63) (305-C; 306-
H; 307-F; 308-F; 312-C; 313-D] 
Laxmipat Choraria v. State of Maharashtra AIR 1968 
SC 938 : 1968 SCR 624; Chandran@ Maniyan v. State 
of Kera/a 2011 (8) SCR 273 : (2011) 5 SCC 161; 
Sanvan Singh v. State of Punjab AIR 1957 SC 637 : 
1957 SCR 953; Haroom Haji Abdulla v. State of 
Maharashtra AIR 1968 SC 832 : 1968 SCR 641; 
Ravinder Singh v. State of Haryana 1975 (3) SCR 453 
: (1975) 3 SCC 742; R v. Baskerville [1916) 2 KB 658; 
Mohd. Hussain Kochra v. K.S. Dalipsinghji & Ors. 1969 
(3) SCR 130 : (1969) 3 SCC 429; Chonampara 
Chellapan v. State of Kera/a (1979) 4 SCC 312; 
Sheshanna Bhumanna Yadav v. State of Maharashtra 
AIR 1970 SC 1330 : 1971 (1) SCR 617 - relied on. 
Black's Law Dictionary; Ramanatlw Aiyar's Law 
Dictionary - referred to. 
2. The Trial Court acquitted all the appellants-accused (A-
3, A-4 and A-15) of the charge of conspiracy under Section 120-B 
of IPC. They have however, been convicted for, among others, 
the offences under Section 302 read with Section 109 and Section 
364 read with Section 109 of IPC. There is nothing on record to 
show the direct involvement of the accused - appellants in either 
the abduction of the deceased or his murder. The requirement of 
corroboration from independent sources in material particulars 
SOMASUNDARAM@ SOMU v. STATE REP. BY DY. COMM. 
OF POLICE 
bas not been met in the instant case. This makes it impossible 
for the accused to be convicted of the offences under Sections 
30

Excerpt shown. Read the full judgment & AI analysis in Lexace.