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Secondly for the purpose fulfilling the object of such conspiracy, while the said Ex.M.L.A. M.K. Balan was walking in the morning on 30.12.01 near MRC Nagar, at the knife point he was kidnapped near Iyyapan temple at about 5.30 am by the accused 4,7,10,11,14,15,16 and 17 in the Maruti van bearing Regn. No.: TN-A-7484 and at that time the 15th accused went in front of that van in a Hero Honda to show the route for them and lastly the said M.K. Balan was kept illegally at Vermicelli factory belonging to one Krishnapandi at Mudichur road, thereby the said accused have been charged under Section 365 IPC and for abetment of the said offence the accused 1,2,3,5,6,8,9 and 13 to 18 accused in going in a car bearing Regn. No.: TN-10-F-5555 have been charged under Section 365 read with Section 109 IPC.

(v) A6 was found guilty under Section 365 read with Section 109 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC. He stood acquitted under Section 120B of the IPC;

(vi) A7 was found guilty under Section 365 of the IPC, Section 387 of the IPC, Section 302 of the IPC, Section 347 of the IPC, Section 364 of the IPC and Section 201 of the IPC. He stood acquitted under Section 120B of the IPC;

56. The learned Judge proceeds to find that PWs 10 and 11 are accomplice witnesses. The two tests to test accomplice evidence are referred to, viz., that the evidence must be credible and, secondly, there must be corroboration of accomplice evidence. The learned Judge noted that PWs 10 and 11 have not been granted pardon by any court but further notes that the mere fact that pardon was not tendered, did not make the accomplice cease to be an accomplice. It was further found that it was a well-settled position of law that the evidence of two accomplices cannot be used to corroborate with each other as laid in R.V. Baskerville13. Support in this regard was sought from precedent in India in the form of judgment of this Court in Mohd. Husain Umar Kochra Etc. v. K.S. Dalipsinghji and another Etc.14 wherein this Court, inter alia, laid down that corroboration must be from an independent source. One accomplice cannot corroborate another. This position was noted to be reiterated in a still later decision of this Court 13 1916 (2) KB 658 14 (1969) 3 SCC 429 in Chonampara Chellapan Etc. v. State of Kerala Etc.15. Corroboration must be in regard to material particulars or rather it must be in relation to the crime as well as identity of the accused. Noting that the accused before the Court were A3, A4 and A15, it was found crucial that they were acquitted of the charge under Section 120B of the IPC. They were found convicted for the offence under Section 302 of the IPC read with Section 109 of the IPC and Section 365 of the IPC read with Section 109 of the IPC. Nothing on record was found to show the direct involvement of the accused in the abducting of the deceased or his murder. The Ford Escort Car-MO12 recovered at the instance of PW10 did not trace back its ownership to A4. Thereafter, it is stated that the requirement of corroboration from independent sources in material particulars, has not been met in the instant case and made it impossible for the accused to be convicted under Sections 302 and 364 of the IPC. PWs 10 and 11 were not witnesses to the abduction of the deceased. PW3, who witnessed the 15 (1979) 4 SCC 312 abduction, it is stated, did not witness the accused at the site of the abduction. Though, PW10 placed A3 and A4 in the meeting on 05.12.2001, significance of the same was lost in view of their acquittal under Section 120B of the IPC. PWs 10 and 11 have not placed any of the three accused (A3, A4 and A15) at the site when the body of the deceased was brought down in the factory. A3, according to the deposition of the accomplices, was found staying downstairs while PW11, who went upstairs, actually saw the deceased tied to chains in the room where he was kept. PW11 only saw A5 at the site on the night of 30.12.2001 carrying a tiffin parcel. The death certificate of the deceased issued by PW32, which PW33 has stated was got at the instance of A3, was found, even if genuine, did not connect A3 in any way to the deceased. As far as A15 is concerned, MO1-Reebok Shoe, which was recovered, was brushed aside by noticing that the courts had failed to consider that PW31-a worker in the factory, has stated that she could not remember the person who came to get it as there is lapse of more than two years. Therefore, PW31 cannot be used against A15. PWs 1 and 2 in their testimony (the son and driver, respectively, of the deceased) stated that the Reebok Shoes did not belong to the deceased. Evidence of PWs 10 and 11 was not found reliable. Finding the accused not guilty under Section 120B of the IPC, the learned Judge noted that it was the duty of the Trial Court to establish the involvement of each of the accused persons individually for each offence for which they have been charged. Reference was made to Section 107 of the IPC, and thereafter, to the Judgment of this Court in Kehar Singh and others v. State (Delhi Administration)16 that something more than a mere conspiracy, viz., some act or illegal omission in pursuance of the conspiracy, is required to be established for abetment by conspiracy. Once a charge under Section 120B of the IPC fails, what was needed to convict the appellants was the happening of some overt act on the part of the appellants. The learned Judge noted that there was no evidence except the testimony 16 (1988) 3 SCC 609 of PWs 10 and 11 which linked the appellants to the crime. The charge under Section 109 of the IPC could not be sustained.

80. 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.

81. 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.