“Reportable”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 452 OF 2007

John Pandian … Appellant

Versus

State Rep. by Inspector of Police, T. Nadu … Respondent

With

CRIMINAL APPEAL NO. 453 OF 2007

Abdul Kareem … Appellant

Versus

State Rep. by Inspector of Police, T. Nadu … Respondent

With

CRIMINAL APPEAL NO. 455 OF 2007

Sivakumar … Appellant

Versus

State Rep. by Inspector of Police, T. Nadu Respondent

With

CRIMINAL APPEAL NO. 2285 OF 2010

[Arising out of SLP (Crl.) No. 1217 of 2007]

1

Yusuf … Appellant

Versus

State Rep. by Inspector of Police, T. Nadu Respondent

With

CRIMINAL APPEAL NO. 503 OF 2007

Ubaiadulla @ Tamil Selvan … Appellant

Versus

State Rep. by Inspector of Police, T. Nadu Respondent

With

CRIMINAL APPEAL NO. 272 OF 2008

Kumar & Ors. Appellants

Versus

State Rep. by Inspector of Police, T. Nadu Respondent

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of Criminal Appeal Nos.

452 of 2007, 453 of 2007, 455 of 2007 and 503 of 2007,

272 of 2008 and SLP (Crl.) 1217 of 2007.

2. Leave granted in SLP (Crl) 1217 of 2007.

3. All these appeals are against the conviction of

accused persons who were convicted by the trial Court

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and the appellate Court for offences under Sections

120B, 302 read with Section 109, Indian Penal Code (IPC)

and Section 302, IPC substantively.

4. Initially, there were as many as 11 accused persons

tried for the offence of murder of Vivi @ Vivek @

Vivekanandan. The trial Court convicted the original

accused No. 9, Kumar s/o Vellaichami, accused No. 10,

Pavunraj @ Pavun s/o Poothiyamuthu and accused No.11,

Prince Kumar @ Prince @ Balan s/o Amalraj for the

offence under Sections 302, IPC read with Section 34,

IPC. While accused No.9, Kumar s/o Vellaichami was

convicted for the substantive offence the other two

accused persons were convicted with the aid of Section

34 IPC. The trial Court acquitted accused No.3

Subramaniam @ Subbu Kutty s/o Ramasamy Gounder. There

was no appeal against his acquittal filed by the State.

Venkatraman Krishnan @ Venkatraman @ Thambu, s/o Surya

Kumar (accused No.1), Sivakumar, s/o Maruthachalam

(accused No.2), Ubaiadulla @ Tamil Selvan, s/o Mohammed

Yusuf (accused No.4), Yusuf, s/o Abdullah (accused

No.5), Abdul Kareem @ Kareem, s/o Hanifa (accused No.6),

John Pandian, s/o Benjamin (accused No.7), Ganesan, s/o

Sudalaimuthu (accused No.8), Kumar, s/o Vellaichami

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(accused No.9), Pavunraj @ Pavun, s/o Poothiyamuthu

(accused No.10) and Prince Kumar (accused No.11) were

convicted for offence under Section 120B, IPC.

Venkatraman (accused No.1), Sivakumar (accused No.2),

Ubaiadulla (accused No.4), Yusuf (accused No.5), Abdul

Kareem (accused No.6), John Pandian, (accused No.7) and

Ganesan (accused No.8) were also convicted for offence

Under section 302, IPC read with Section 109, IPC. Out

of these accused persons, barring accused No.3, who was

acquitted, all the rest filed appeals before the High

Court. The appeal filed by original accused No.8,

Ganesan was allowed and he was acquitted. The appeals

of the remaining accused persons were dismissed and the

conviction and sentences passed against them were

confirmed. During the pendency of this appeal, however,

Venkatraman (accused No.1) committed suicide while

accused No.11, Prince Kumar @ Prince died. Thus, in the

present appeals, we are left with original accused Nos.

2, 4, 5, 6 and 7 and accused Nos. 9, 10 and 11. For the

sake of convenience, we shall refer to the accused

persons from their original accused numbers.

5. This is a pathetic story of a triangle of love

having resulted in the gruesome end of the deceased. We

4

shall first start with the gruesome murder of deceased

Vivek @ Vivekanandan which took place on 17.8.1993 at

about 10.15 a.m. on a busy road called Diwan Bahadur

Road in R.S. Puram near Richy Rich restaurant at

Coimbatore. The prosecution painted a picture that

Vivek and the original accused No.1 Venkatraman, whose

family owned Laxmi Vilas Mills at Coimbatore were

studying in the same college. One Sunitha (PW-3) was

also studying with them. Venkatraman (accused No.1) had

a crush on Sunitha. However, there was a love affair

going on between Sunitha and Vivek which ultimately

resulted in the marriage of both of them. In fact,

everything should have come to an end with that marriage

and they should have been left to live happily forever

but unfortunately that was not to be. The prosecution

painted a picture that even after their marriage the

fatal attraction which Venkatraman (accused No.1) felt

for Sunitha did not end and he remained a close friend

of Vivekanandan and Sunitha to the extent that on the

earlier day on which the murder took place they had even

gone to a movie along with their other friends. It has

come by way of prosecution story that Venkatraman (A-1)

was trying to be as near to the couple as possible and

he had even provided them with a telephone line. He

5

also helped the couple in establishing their house by

helping to buy drapery for their newly set up abode. It

was also tried to be shown by the prosecution that after

the marriage of deceased Vivekanandan with Sunitha there

was a brief love affair between accused No.1,

Venkatraman and one Sherry who was a student of an

engineering college. Though Venkatraman (accused No.1)

got married to Sherry in a secret manner perhaps after

converting her to Hinduism, Sherry did not honour her

marriage vows and left the company of Venkatraman (A-1)

and went back to Kerala and, thereafter, also got

married to one Thomas and left the country to live in

Middle East. This added fuel to the fire of love and

jealousy in the heart of Venkatraman (A-1). He,

therefore, hatched a conspiracy along with the other

accused persons to eliminate the deceased Vivekanandan

for ever.

6. It was suggested that Sivakumar (accused No.2) who

was his petty employee helped him in establishing

contacts with Ubaiadulla (A-4), Yusuf (A-5) and Abdul

Kareem (A-6). The prosecution alleged that Ubaiadulla

was a worker of a political party and also moved with

another name called Tamil Selvan. The prosecution

6

alleged that Sivakumar (A-2), Ubaiadulla (A-4), Yusuf

(A-5) and Abdul Kareem (A-6) established contacts with

one John Pandian (A-7) who was a resident of Tirunelveli

and was a leader of an organization called Porur Union

Dravidar Kazhagam.

7. Yusuf (A-5) and Abdul Kareem (A-6) used to know

John Pandian (A-7) and, therefore, John Pandian (A-7)

was contacted in order to arrange and hire assassins for

this purpose. Sivakumar (A-2) Ubaiadulla (A-4) and Yusuf

(A-5) first went to Madurai on 17.7.1993 by Rameswaram

Express and from there to Tirunelveli and stayed in a

lodge called Sri Jankiram Lodge. It is alleged that

from there, they tried to contact John Pandian (A-7) on

his telephone. However, not being able to contact him

and knowing that he had gone to Chennai they went to

Chennai. It is the prosecution case that John Pandian

was staying in MLA’s hostel at Chennai and these accused

persons met him there. It was alleged by the

prosecution that after meeting and settling with John

Pandian (A-7), Sivakumar (A-2) Ubaiadulla (A-4) and

Yusuf (A-5) and Abdul Kareem (A-6) came back to

Coimbatore. In view of all these efforts, Venkatraman

(A-1) withdrew Rs. 3 lakhs through Sivakumar (A-2), who

7

was his office boy, on 30.7.1993 by a cheque drawn on

Thirupur Bank which was got encashed through Sivakumar

(A-2). It is alleged that the amounts were given to

Ubaiadulla (A-4) and Yusuf (A-5) and Abdul Kareem (A-6)

and, thereafter, on receiving the money, Sivakumar (A-2)

Ubaiadulla (A-4) and Yusuf (A-5) again went to

Tiruneveli and stayed at Blue Star Hotel. It is alleged

that John Pandian (A-7) arranged the services of Kumar

s/o Vellaichami (A-9), Pavunraj @ Pavun (A-10) and

Prince Kumar @ Prince (A-11) and hired them as

assassins. They came to Coimbatore on 2.8.1993 from

Tirunelveli and stayed at Vijaya Lodge. It was alleged

that at that time Sivakumar (A-2) gave the photo of

Vivekanandan to Kumar Vellaichami (A-9), Pavunraj @

Pavun (A-10) and Prince Kumar @ Prince (A-11). This

photograph was originally a joint photograph of the

marriage of deceased Vivekanandan with Sunitha. It was

alleged by the prosecution that Venkatraman (A-1) neatly

cut that photograph and separated the photograph of

Vivekanandan from the photograph of Sunitha which

remained with Venkatraman (A-1) and was later on seized

by the police. Nothing, however, happened on that day

since there was heavy police bandobast at Coimbatore for

two days and Vivekanandan was also not in town. Abdul

8

Kareem (A-6) contacted John Pandian (A-7) from STD booth

at Ukkadam locality in Coimbatore. It was alleged that

Kumar Vellaichami (A-9), Pavunraj (A-10) and Prince

Kumar (A-11) hired a car bearing registration No. TAC

5667 of which Ganesan (A-8) was the driver. It was

alleged that all the four accused persons went to Ooty

and stayed at Arthi Lodge and on the morning of

17.8.1993, they proceeded from Ooty and came to

Coimbatore and that very morning at about 10.15 a.m.

Kumar s/o Vellaichami (A-9), Pavunraj (A-10) and Prince

Kumar (A-11) assaulted deceased Vivekanandan mercilessly

with aruval and murdered him on the spot. This incident

was seen by one Selvaraj (PW-14), Paramasivam (PW-15)

and Ramalingam (PW-16). On that day control room of B-2

police station received an information that a person was

lying near Richy Rich Restaurant. One Valliappan who

was the manager in a company run by Vivekanandan

accordingly rushed to the spot, saw the situation and

lodged the complaint. On that basis, police started the

investigation.

8. The investigating officer, Thiru Rathinasabapathy

(PW-56) started investigation. He found on the spot a

9

chappal left by one of the accused persons near the dead

body.

9. In order to investigate the offence, he divided the

police officers in teams and deployed them to enquire

about the accused, the occurrence and the motive

therefor. He recorded statements of various witnesses

including some of the eye witnesses during the

investigation in the next 4-5 days. Venkatraman (A-1)

was not to be seen. Thiru Rathinasabapathy (PW-56) had

recorded statements of friends and all the possible

witnesses who could have seen the ghastly incident.

Almost all the angles were examined by the investigation

officer by recording the statements of number of

witnesses including the shop owners, friends and

relatives of Vivekanandan. He also seized some

documents. On 29.8.1993 at about 2.15 p.m., when he was

present at Karuppa Gounder Street near Chellamuthu Fruit

Commission Mandy along with Head Constable 509 and other

police party, he chanced to see second accused Sivakumar

who was going towards North with a cloth bag in his

hand. He was arrested at that time and in his bag an

amount of Rs. 1 lakh was found. This witness agreed to

discover the hidden sum of Rs.21,000/- which was the

10

balance after spending some money out of the amount

given by Venkatraman (A-1). The arrest of Sivakumar (A-

2) led to the arrest of Abdul Kareem (A-6) and

Ubaiadulla (A-4). They also showed their readiness to

disclose the incriminating articles including the money.

Accordingly, Abdul Karim (A-6) agreed to disclose the

two sovereigns of gold chain which he had purchased out

of the commission money given to him as commission as

also a scooter. The police party was led by Sivakumar

(A-2) to his house where an amount of Rs.21,000/- was

seized which was kept in a polythene bag. The arrested

accused No.4, Ubaiadulla also took the police party to

his house and an amount of Rs.23,000/- and a Titan watch

was discovered. He also discovered a gold chain along

with the receipt of Sri Vignesh jewellery for purchasing

that gold chain from Abdul Kareem’s house. At about

6.30 the police party reached the house of the

Venkatraman (A-1). He was arrested. He agreed to

discover the photograph of Sunitha and a pair of diamond

ear studs purchased for her which he had hidden in a

place. He took the police party to his newly built

house along with his father from where he took out from

a white plastic bag kept in the safe locker a colour

photograph of Sunitha which was a counterpart of

11

Vivekanandan’s photograph and a pair of diamond ear

studs. The police party was then taken by Abdul Kareem

(A-6) to Sudarshan Lodge, Udumalpet-Dharapuram Road from

where the police party arrested Ganesan (A-8). The car

in which assailants had travelled, bearing No. TAC 5667,

at that time was parked along with Dharapuram Raod on

the Northern side of Sudarshan Lodge. The car was

searched and the police party found an amount of

Rs.13,000/- from beneath the rear seat of the car and

the photo cutting of deceased which was kept in a rose

colour cover. There was a trip sheet in the car, that

was also seized. It was seen from the register of that

lodge that someone had stayed in the false name and

address, namely, Pandian Palanganatham, Madurai. The

STD booth from where the calls used to be made to John

Pandian (A-7) was also identified by Abdul Kareem (A-6).

It was booth No. 30893. The investigating officer

seized the STD calls register roll confirming that

number of calls were made to telephone No.72324 of

Tirunelveli which was the telephone number of John

Pandian (A-7) on various dates like 6.8.1993, 9.8.1993

again 6.8.1993, 19.8.1993, 11.8.1993, 13.8.1993 and

16.8.1993 etc. There were in all ten calls made of

various durations. Yusuf (A-5) surrendered by himself.

12

The auto driver Paraman @ Paramasivam (PW-15) who was

the eye witness was also found and his statement was

recorded. The documents at Vijayalaxmi Mills of which

Venkatraman (A-1) was the owner were seized. The

records at MLA’s hostel in Chennai were also seized. It

was then found that Pavunraj (A-10) and Prince Kumar (A-

11) had surrendered before Judicial Magistrate and they

were taken into custody. The cheque books and the

cheque dated 13.7.1993 was also seized. The train

reservation records of journey of Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5) and Abdul Kareem (A-6)

were also found by the investigating officer and seized.

The records of Vijayalaxmi Lodge were found out. The

investigating officer also collected the handwriting of

Sivakumar (A-2), Ubaiadulla (A-4), Pavunraj (A-10) and

Prince Kumar (A-11) and also found out the bank books

etc. After the arrest of Pavunraj (A-10) he agreed to

discover Rs.2,000/-. He accordingly, discovered those

articles. So also Prince Kumar (A-11) agreed to

discover the amount of Rs. 5,000/- and the photograph of

Annachi John Pandian (A-7). This was the connection of

Kumar (A-9), Pavunraj (A-10) and Prince Kumar (A-11)

with John Pandian (A-7). He took him to his house in

Anna Nagar and took out Rs.5,000/-and a gold minor chain

13

weighing 12 gms. The money found out by Pavunraj was

kept in a cover on which the words ‘Vijayalaxmi Mills’

had been printed. The investigation was conducted for

finding out the correctness of statement made by

Ubaiadulla (A-4) and the records of Jankiram Lodge were

also seized. The record of Blue Star Lodge,

Tirunelvelli were also found out and seized. The owner

of the car was also contacted. John Pandian (A-7)

surrendered before the Judicial Magistrate. Before

that, the investigating officer had also seized the

minute books of Coimbatore District Dravidar Kazhagam

and Porur Union Dravidar Kazhagam. John Pandian’s house

was also investigated and it was found that telephone

No.72324 was in that house only. The Test

Identification Parade was got conducted on 28.10.1993 in

respect of Pavunraj (A-10) and Prince Kumar (A-11). The

witnesses, namely, Selvaraj (PW-14), Paraman @

Paramasivam (PW-15) and Ramalingam (PW-16) took part in

that Test Identification Parade.

10.Accused No.9, Kumar was arrested later on. He

agreed to discover the aruval with which he had

committed the murder. The Identification Parade in

respect of Kumar (A-9) was held on 1.11.1993. The

14

material objects seized were sent for chemical analyzer

examination in the forensic science laboratory and after

completing the investigation the charge sheet was filed

on 1.8.1995. The charges were framed and as many as 56

witnesses came to be examined on behalf of the

prosecution. The accused persons abjured their guilt

and were ultimately convicted as has been stated above.

Their appeals having been dismissed, the matters are now

before us in these appeals.

11.Ms. V. Mohana who appeared for accused Nos. 9, 10

and 11, namely, Kumar, Pavunraj and Prince Kumar

respectively, extensively argued and pointed out that

the evidence regarding their identification and also the

evidence of the so-called eye witnesses was not

creditworthy. She pointed out that there was no reason

for these accused persons who were the residents of

Tiruneveli to have any grudge against the deceased. She

also pointed out that there was no motive on the part of

these accused persons. Her further contention was that

barring one eye witness, the other so-called eye

witnesses became available for recording their statement

after considerable time and hence they were not

creditworthy. Further, her contention was that there

15

was no reason why the natural witnesses were avoided and

the three unnatural witnesses came to be offered. Her

further contention was that the evidence of witnesses on

Test Identification Parade was also not satisfactory and

the whole exercise was a farce. She further urged that

there was no evidence much less the direct evidence

against these accused persons. In so far as the

circumstantial evidence was concerned, she pointed out

that an effort on the part of the prosecution to connect

these accused persons with the crime was of no

consequence. The so-called discoveries and the evidence

regarding their stay in the hotels or travelling in the

car given by Ganesan (A-8) was also of no consequence.

She urged for acquittal.

12.Shri Senthil Jagadeesan, learned advocate appearing

for Sivakumar (A-2) and Abdul Kareem (A-6) painstakingly

took us through the evidence and urged that these

accused persons were roped in only on the so-called

circumstantial evidence. He pointed out that the

prosecution had miserably failed to establish any

conspiracy at all and further role played by or

connection of these accused persons with that

conspiracy. The learned counsel pointed out that the

16

theory of discovery from the accused persons of

substantial amount was nothing but a myth and the so-

called discoveries made were farcical. He further

pointed out that there was no reason for a wealthy and

rich person Venkatraman (A-1) to take help of his office

boy to contact John Pandian (A-7) and enter into a

conspiracy to eliminate the deceased. The learned

counsel further argued that the whole prosecution story

of conspiracy was on an extremely weak pedestal and had

collapsed. The counsel further argued that there was

good explanation offered by the accused No.2, Sivakumar

for the amounts which were allegedly discovered from his

house and the Courts below have looked at the whole

affair with jaundiced eyes.

13.Shri E.M.S. Anam, appearing for Ubaiadulla (A-4)

urged that there was nothing to support the theory that

Ubaiadulla was known as Tamil Selvan also. Learned

counsel pointed out that he had no reason whatsoever to

be in contact with Kumar (A-9), Pavunraj (A-10) and

Prince Kumar (A-11). He further argued that the

evidence regarding his handwriting was also absolutely

brittle. He further argued that there was no evidence

17

that this accused ever went to Chennai. He also

suggested that the discovery was a farce.

14.Shri Ravi Kumar Tomar, learned counsel appearing

for Yusuf (A-5) pointed that that there was no discovery

from this witness at all and there was hardly any

evidence worth the name against this accused excepting

that his name was mentioned in the reservation charts

and the reservation slips, that too in a different

manner.

15.Shri Shekhar Naphade, learned Senior Counsel

appearing for John Pandian (A-7) reiterated that there

was absolutely no evidence against him. He pointed out

that there was no nexus established between Venkatraman

(A-1) and John Pandian (A-7) or Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5) and Abdul Kareem (A-6) and

John Pandian (A-7). It was pointed out that John

Pandian was a well known political figure and,

therefore, the telephone calls made from a particular

booth by itself could not be viewed as an incriminating

circumstance. Similarly, his photograph being found

with Kumar (A-9) was also of no consequence whatsoever.

It was pointed out that there was no evidence worth the

name available to establish that this accused had stayed

18

in Chennai at MLA’s hostel and he met the other accused

persons there and hatched the conspiracy. According to

the learned counsel much stronger evidence was required

for coming to the conclusion that there was conspiracy

and this accused was an active member thereof.

16.As against this, Shri K. Ramamoorthy, learned

senior counsel urged that this was a case of classic

investigation where the investigation officer had left

no stone unturned. Learned counsel was at pains to

point out that there was a definite aim with which the

accused persons moved. Shri Ramamoorthy urged that it

was not open to accused to insist on re-appreciation of

evidence. He further urged that firstly, the evidence

of identification of the three accused persons, namely,

Kumar (A-9), Pavunraj (A-10) and Prince Kumar (A-11) was

wholly reliable and there was no cross-examination worth

the name of the Magistrate or even the witnesses who had

identified the accused persons and the evidence was

rightly accepted by both the Courts below.

17.We were taken through the evidence against the

accused persons painstakingly by Shri Ramamoorthy who

pointed out that a person like Sivakumar (A-2) could not

be expected to have an amount of over a lakh of rupees

19

which was found with him and the explanation was

palpably false. Similar was the case in respect of the

other accused persons. Insofar as the eye witnesses are

concerned, the learned counsel urged that the statement

of one of the eye witnesses was recorded on the same day

and he had the opportunity to see the incident in broad

day light and the witnesses had correctly identified

Kumar (A-9), Pavunraj (A-10) and Prince Kumar (A-11) in

the identification parade. According to the learned

counsel the photographs of the accused persons were

never published. He argued that the very fact that the

Kumar (A-9), Pavunraj (A-10) and Prince Kumar (A-11)

came all the way from Tirunelveli and murderously

assaulted the deceased suggests that there was a

conspiracy. Learned counsel very painstakingly pointed

out to us the love angle of this whole theory and

pointed out that it was the crush in the mind of the

first accused, Venkatraman which has resulted in the

whole tragedy. As regards the conspiracy theory the

learned counsel urged that there was no explanation by

Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5) and Abdul

Kareem (A-6) whatsoever for their suspicious movements.

He pointed out that it was very difficult to prove the

conspiracy by direct evidence and, therefore, we would

20

have to jot down the circumstances as proved by the

prosecution and then come to the conclusion regarding

the existence of criminal conspiracy which was correctly

drawn by trial and appellate Court. As regards John

Pandian (A-7), learned counsel urged that he was the

kingpin and his complicity was clear as he was the only

person who was known to Kumar (A-9), Pavunraj (A-10) and

Prince Kumar (A-11). Shri Ramamoorthy also pointed out

that there was false explanation given of these accused

persons in their examination under Section 313, Cr.P.C

and that itself suggested that the accused persons were

involved in the matter.

18.It is on this basis of rival claims that we have

now to examine the matter to decide whether the

conviction of the accused persons is justified.

19.Peculiarly, in this case the accused-appellants can

be divided into two groups. The first group is Kumar

(A-9), Pavunraj (A-10) and Prince Kumar (A-11) [Prince

Kumar (A-11) is now no more and the appeal by him has

abated] who were involved by the direct ocular testimony

and were also part of the conspiracy to murder

Vivekanandan. The second group is that of the accused

persons being Sivakumar (A-2), Ubaiadulla (A-4), Yusuf

21

(A-5) and Abdul Kareem (A-6) and John Pandian (A-7) who

are roped in as the conspirators. There is, however, no

direct evidence against them insofar as the act of

assault on deceased is concerned. Thus, the only

difference in the two groups is that while there is

direct evidence of the eye-witnesses regarding the

assault on Vivekanandan against the first group, there

is no such evidence in respect of the second group and

the prosecution will have to depend upon the

circumstantial evidence of conspiracy against them.

20.We, therefore, propose to consider the matter

group-wise. The conviction of Kumar (A-9), Pavunraj (A-

10) will depend upon the evidence of eye-witnesses along

with the other circumstantial evidence of their

complicity in this crime. However, it cannot be

disputed that if the evidence of the eye-witnesses is

acceptable wholly as it was held by the trial Court and

the appellate Court, then that by itself can become the

basis of their conviction. Normally, once the evidence

is accepted by the trial and the appellate Court, this

Court does not go into the exercise of re-appreciation

unless it is shown that the appreciation of evidence by

trial and appellate Court is perverse, not at all

22

acceptable to trained judicial mind or so faulty as to

require the inference of this Court or that the trial

and appellate Court have relied on some inadmissible

piece of evidence or have left out of the consideration

some evidence which they were bound to consider and

appreciate. We have seen the evidence and the judgments

of trial and appellate Courts very closely so as to

satisfy ourselves as to whether the trial and appellate

Court have properly appreciated the same and recorded

the verdict of conviction.

21.We shall first take up the case of Kumar (A-9),

Pavunraj (A-10). Prince Kumar (A-11) now having

expired, we need not comment about his complicity which,

however, will be necessary to consider while considering

the case of Kumar (A-9) and Pavunraj (A-10). The

evidence against the three accused basically consists of

the eye-witness account by Selvaraj (PW-14), Paramasivam

(PW-15) and Ramalingam (PW-16). The prosecution has

sought to support this evidence by leading the evidence

of the Magistrate who held the Identification Parades

for identifying Pavunraj (A-10) and Prince Kumar (A-11)

by witnesses Ramalingam (PW-16), Selvaraj (PW-14),

Shanmugasundaram, Nagarajan, Paramasivam (PW-15), M.P.S.

23

Narayanan and Rajan. Out of these witnesses who were

asked to identify the said two accused the prosecution

has remained content by examining Selvaraj (PW-14),

Paramasivam (PW-15) and Ramalingam (PW-16). The

prosecution did not examine Shanmugsundaram, Nagarajan,

M.P.S. Narayanan and Rajan. This identification Parade

was held on 15.9.1993 in Central Prison, Coimbatore.

The second Identification Parade was held on 28.10.1993

for the identification of Kumar (A-9) by the same seven

witnesses. Rajsekharan (PW-54) drew the mahazars

wherein it was suggested that Ramalingam (PW-16) had

correctly identified Pavunraj (A-10) and Prince Kumar

(A-11). He identified both the accused persons

correctly, twice. The evidence of the witnesses and the

mahazars also suggested that Selvaraj (PW-14) correctly

identified Prince Kumar (A-11) and Pavunraj (A-10)

twice. Similarly, Paramasivam (PW-15) identified

Pavunraj (A-10) and Prince Kumar (A-11) twice, like the

two earlier witnesses. The mahazar was also proved as

Exhibit P-84. This witness also held the Test

Identification Parade in respect of Kumar (A-9) on

28.10.1993 at the same place. It was deposed by this

witness that Ramalingam (PW-16) correctly identified

Kumar (A-9) twice. He further deposed that Selvaraj

24

(PW-14) had also correctly identified Kumar (A-9) twice.

He also deposed that Paramasivam (PW-15) could not

identify Kumar (A-9). Exhibit P-85 is the mahazar of

the second Identification Parade held on 28.10.1993.

The witness also reiterated that the necessity of

identifying twice was on account of the opportunity

given to the accused persons to change their clothes

after the first identification.

22.The prosecution heavily relied on the evidence of

Rajsekharan (PW-54) and Exhibits P-84 and P-85. The

third circumstance relied upon by the prosecution is the

discovery of aruval (M.O.-1) at the instance of Kumar

(A-9) from Hindu Cremation ground along with Udumalpet

Road, Pollachi. In that behalf the prosecution relied

on the evidence of Rathinasabapathy (PW-56), the

investigating officer and Anand (PW-41).

23.The next circumstance relied upon by the

prosecution was the engaging of taxi No. TAC 5667 by

Kumar (A-9), Pavunraj (A-10) and Prince Kumar (A-11)

which was used by them for travelling from Tirunelveli

to Ooty and Ooty to Coimbatore and back via Udumalpet.

The prosecution sought to prove through the evidence of

Sidhharth (PW-43) that this taxi passed through Ooty

25

through check post at Barliar, Mettupalayam Road on 16-

17/8/1993 and thereby the prosecution wanted to prove

that these three accused persons along with Ganesan (A-

8) (already acquitted by the High Court) were in Ooty

and the taxi had paid the toll vide Exhibits P-61 and P-

62 on 16.8.1993. The prosecution also relied on Senthil

(PW-44) to prove that the accused persons stayed at the

night of 16.8.1993 in hotel called Arthi Lodge, Ooty.

Page No.1013, Entry No.112 in the register, Exhibit P-63

showing the name of Kumar (A-9) and two others was

sought to be proved by this witness.

24.It was also tried to be suggested on the basis of

the complaint and the First Information Report Annexures

P-102 and P-103, respectively, the roles played by the

three accused persons. Two of them waylaid deceased

Vivekanandan and the third assaulted him. This

supported the theory that Vivekanandan was assaulted by

three persons in all. The next circumstance relied upon

by the prosecution is the evidence of Ranjit Check (PW-

50) who was the Scientific Officer who deposed that the

footwear left by Kumar (A-9) matched with the foot

prints of Kumar (A-9). Further the recovery mahazars

and confessional statements by Pavunraj (A-10) under

26

Exhibit P-54 and that made by Prince Kumar (A-11) in

Exhibit P-55, two of the accused persons were sought to

be connected. It was further suggested that the amount

recovered in one of these recoveries was kept in an

envelope in which there were printed words ‘Vijay Laxmi

Mills Ltd.’. The further circumstance relied upon was

that in taxi No.TAC 5667 in which the three accused

persons are alleged to have travelled extensively, cut

photograph of Vivekanandan was found along with

Rs.13,000/- under the back seat. The trip sheet found

was also relied upon. These are all the circumstances

relied upon against Kumar (A-9), Pavunraj (A-10) and

Prince Kumar (A-11). We will have to, therefore,

consider these circumstances also which have been relied

upon by the trial and the appellate Courts.

25.There can be no dispute that Vivekanandan

(deceased) met a homicidal death. He died on the spot

where he was assaulted and had suffered as many as 9 cut

injuries on the vulnerable parts of his body like his

shoulder, neck, right cheek, occipital region etc. The

intention of the assaulters can be gathered from the

nature of the injuries. The weapon used was M.O. 1

27

veechu aruval, a weapon with the handle and with the

bent sharp blade.

26.Again this murder took place on the busy road of

Coimbatore between 10 a.m. and 11 a.m. when there was

sunlight and as such, the eye-witnesses had the full

opportunity to witness the incident. Exhibit P-102 is

the complaint which was given by Valliappan who was none

else but the Manager of the company which Vivekanandan

was running. This was given at 11 a.m. It was

immediately after the investigating officer visited the

spot and registered the offence that Ramalingam (PW-16)

became available to the police. His statement was

recorded only after Valliappan filed the complaint.

Therefore, on that count, at least insofar as Ramalingam

(PW-16) is concerned, there can be no difficulty. The

trial Court and the appellate Court have considered the

criticism by the defence that the eye-witnesses had

changed the spot inasmuch as the eye-witnesses had

referred to the incident having taken place near ‘Titan

Watch Shop’ and not ‘Titan Showroom’ which it actually

was. The appellate Court, in its elaborate judgment,

has also considered few minor and insignificant

contradictions regarding the location of autorickshaw

28

stand and some shops and has held that the incident took

place near a restaurant called ‘Richy-Rich’. The

observation mahazar also suggested the same spot only.

On that basis, a finding was written that the argument

of the defence that the spot was sought to be changed

was rejected. The said argument was addressed before us

also. We, however, do not find anything to hold that

the prosecution witnesses, particularly, Selvaraj (PW-

14) Paramasivam (PW-15) and Ramalingam (PW-16) had

changed the spot. In fact, they would gain nothing by

changing the spot. One common comment can be made about

these witnesses that all of them were totally

disinterested witnesses. They had nothing against the

accused persons nor were they interested in the accused

so as to speak falsehood in order to obtain the

conviction. It was argued by Ms. V. Mohana, learned

Counsel for the appellant that these three eye-witnesses

were the chance witnesses. We do not agree. Ramalingam

(PW-16) had every reason to be near the spot as his

place of working i.e. Prithvi Jewellers was near the

spot. It cannot be forgotten that it was he who

informed Valliappan that the deceased was murdered.

Some comment can be made about the other two eye-

witnesses, who in their evidence, asserted that they

29

used to come on the spot. Selvaraj (PW-14) had

specifically stated that he was doing his real estate

business and that he alongwith his two other friends,

namely, Shanmugasundaram and Nagaraj, used to assemble

at 9’O clock in the morning and would continue to be

there till 11 a.m. This witness even used to recognize

deceased Vivekanandan. Similarly, Paramasivam (PW-15)

used to drive auto and used to keep his auto near the

Top Notch Shoe Shop. It is a well known fact that the

auto drivers start their day from a particular spot

where they usually come and then ply their auto in a

particular area. This witness claimed that he used to

ply his auto from D.B. Road where the incident took

place. So, there is nothing wrong in the witnesses

being present where they claimed to be. Ms. Mohana,

learned Counsel tried to suggest that these witnesses

were the chance witnesses and, therefore, we should

discard their evidence on that count. That is not

possible. Both the Courts below have relied upon their

evidence holding them to be credible witnesses. This

Court normally is very slow to take the exercise of re-

appreciation of the evidence in such cases. Unless the

appreciation by both the Courts below is found to be

perverse, unsustainable and basically frivolous, this

30

Court will not go into the exercise of re-appreciation

of the evidence. We have seen the evidence very

carefully and we do not find any such thing. Therefore,

these witnesses cannot be dubbed as the chance

witnesses.

27.Other criticism levelled against these witnesses

was that the statements of Selvaraj (PW-14) and

Paramasivam (PW-15) were not recorded immediately.

While the statement of Selvaraj (PW-14) was recorded on

20.8.1993, Paramasivam (PW-15) became available for the

statement after about 15 days. It is true that the

criminal courts would expect the statements of the eye-

witnesses to be recorded immediately or with least

possible delay. The early recording of the statement

gives credibility to the evidence of such witnesses.

But then it is not an absolute rule of appreciation that

where the statement is recorded late, the witness is a

false witness or a trumped-up witness. That will depend

upon the quality of the evidence of the witness.

Selvaraj (PW-14) has explained that he was afraid and,

therefore, did not come to the spot for 2-3 days. That

is quite natural. It has come in the evidence of

Rathinasabapathy (PW-56), the investigating officer,

31

that he examined the statement of Ramalingam (PW-16)

almost immediately after the inquest. As for Selvaraj

(PW-14), if the witness did not turn up out of the fear,

there is nothing unnatural. In this country, people are

not keen to become the witnesses and avoid the police-

interrogation. That should have happened with this

witness. Even the other witness Paramasivam (PW-15)

also avoided to go to the police or to be available to

the police for 15 days. Though the period of 15 days is

rather a longish period, that by itself should not be a

reason to disbelieve him. The trial and the appellate

Courts have been alive to this situation and have

considered this aspect. Our attention was invited to

the statement made by Ramalingam (PW-16) to the effect

that he asserted that the statements of these two

witnesses were also recorded on 17.8.1993, which was not

correct. This circumstance was considered by the

appellate Court and, in our opinion, rightly. We,

therefore, need not go into that aspect. The evidence

was severely criticized on the basis that all the three

witnesses had contradicted each other. We do not think

so. All the three witnesses had given graphic

description of the incident. All of them have asserted

that first two accused they being Pavunraj @ Pavun (A-

32

10) and Prince Kumar @ Prince (A-11) stopped the

deceased and the third accused Kumar Vellaichami (A-9)

started severely assaulting the deceased. Insofar as

role played by these accused persons is concerned, the

evidence of all the three eye-witnesses is in consonance

with each other and there does not appear to be any

reason to discard their evidence. In our opinion, the

trial and the appellate Courts are right in accepting

their evidence as truthful. There is not a word of

cross-examination on the factum of assault and the

manner thereof. Therefore, we are not impressed by the

argument of Ms. Mohana that the evidence of these three

witnesses should be discarded. We do appreciate the

argument that the statement of Paramasivam (PW-15) was

recorded after about 15 days, however, his evidence

appears to be creditworthy. He was frank enough in

admitting that he left the place and never came back for

15 days to run the auto. If he avoided the police for

15 days, there is nothing unusual about it. When we

test this fact as against the quality of his evidence,

it might be stated that the witness appears to be

truthful and was rightly relied upon by the Courts

below, ignoring the time taken for recording his

statement. Insofar as Ramalingam (PW-16) is concerned,

33

his evidence remained unshaken and like the earlier two

witnesses, there was hardly any cross-examination.

28.All the three eye-witnesses have been corroborated

by the fact that in the Test Identification Parade, they

identified the accused persons. Barring Kumar s/o

Vellaichami (A-9) who was not identified by one of the

witnesses, namely, Parmasivam (PW-15), two other eye-

witnesses have been able to identify all the three

accused persons. We have very carefully seen the

evidence of Rajsekharan (PW-54), the Magistrate, who

conducted the Parade. Rajsekharan (PW-54) has deposed

that in the first Identification Parade, only Pavunraj @

Pavun (A-10) and Prince Kumar @ Prince (A-11) were

available. He held the first Identification Parade in

respect of these two accused persons on 15.9.1993 i.e.

within one month of the incident. In that Parade, both

the accused were identified twice by all these three

witnesses. He had also included the other witnesses who

were claimed to be the eye-witnesses by the police.

However, it has come that only these three witnesses

were able to identify the accused persons Pavunraj @

Pavun (A-10) and Prince Kumar @ Prince (A-11) twice. We

are impressed by the fact that even after changing their

34

dresses, when the accused persons again stood for the

identification, they were actually identified by all the

three eye-witnesses. The second Test Identification

Parade was held on 28.10.1993 as till then Kumar s/o

Vellaichami (A-9) had not become available. Barring one

witness, namely, Paramasivam (PW-15), both the eye-

witnesses Selvaraj (PW-14) and Ramalingam (PW-16) were

able to identify Kumar (A-9) twice. We have very

closely considered the evidence of this witness. There

is absolutely nothing which could be pointed out against

the evidence being accepted. In our opinion, the trial

and the appellate Courts have rightly accepted the

evidence of Test Identification Parade, which has the

effect of corroborating the evidence of the three eye-

witnesses. It was stated that one of the eye-witnesses

have failed to identify Kumar (A-9), but that by itself

will not be sufficient to view with suspicion the

participation of Kumar (A-9). The other two witnesses

Selvaraj (PW-14) and Ramalingam (PW-16) have actually

identified him as the assaulter. The evidence of

Identification Parade need not be viewed as a weak type

of evidence as held in State of Uttar Pradesh Vs. Boota

Singh & Ors. [1979 (1) SCC 31]. We do not think that

the evidence of these three eye-witnesses suffer from

35

any infirmity.

29.Ms. Mohana, learned Counsel appearing on behalf of

the appellant then urged that in the complaint, the

person who assaulted Vivekanandan (deceased), was

described as a tall middle aged man and two persons of

the lean body of the same age group accompanied him. In

the first place, in the absence of evidence of

Valliappan who was the maker of the FIR, this contention

cannot be appreciated. Nothing has been brought about

in the cross-examination of these three witnesses and,

more particularly, in the cross-examination of

Ramalingam (PW-16) that they had described the

assailants to Valliappan and that it was on that basis

that he made the report. Ms. Mohana very earnestly

urged that it was an admitted position that this

description did not fit any of the accused persons. We

do not think that the description given by Valliappan

could affect the credibility of the evidence of these

three eye-witnesses who had the full opportunity to see

the accused persons and who had correctly identified the

accused persons in the Test Identification Parades. Ms.

Mohana urged that the accused persons were shown to the

witnesses earlier and irresponsible suggestions were

36

also thrown to the witnesses that they had seen the

photograph of the accused persons in the newspaper. The

defence has not brought on record any such newspaper

where the photographs of the accused persons were

published. On the other hand, we find that Paramasivam

(PW-15) had, in a flawless manner, conducted both the

Identification Parades and withstood his cross-

examination very well. In fact, the eye-witnesses’

account supported with by the evidence of Test

Identification Parades is more than enough to seal the

fate of Kumar (A-9), Pavunraj @ Pavun (A-10) and Prince

Kumar @ Prince (A-11).

30.Some other circumstances, however, were brought on

record by way of circumstantial evidence against the

three accused persons. The most important of these

circumstances is the discovery of aruval effected at the

instance of Kumar (A-9) from Hindu cremation ground

along with Udumalpet Road, Pollachi. This discovery was

tried to be proved by the evidence of Anand (PW-41) and

PW-56, the Investigating Officer. It was deposed by

Anand (PW-41) that while he was standing at the bus stop

near Udumalpet Road with one Thirugnanasambadam, a

police van came and stopped. An Inspector and some

37

police men and other persons alighted from that van.

The said person was the 9

th

accused, Kumar. The

Inspector told Anand (PW-41) that the 9

th

accused, Kumar

was going to take out and produce a thing for which he

was required as witness. He further suggested that the

9

th

accused took all of them to the Hindu cremation

ground along with Udumalpet Road, Pollachi and from the

Northern corner of that cremation ground at a distance

of 50 feet took out the veechu aruval from the thorny

bush.

31.Rathinasabapathy (PW-56) supported this version and

reiterated that Kumar had surrendered before the

Judicial Magistrate No.6, Madurai and, therefore, he

gave requisition to Judicial Magistrate on 21.9.93 for

conducting his identification parade. He referred to

the identification parade held on 29.10.93. Kumar (A-9)

gave a voluntary confessional statement before the

witness where he had urged that if he was taken he would

discover the aruval. The witnesses Jayraman (PW-40) and

C.P.Rajan before whom this statement was made,

unfortunately left as they had some work and, therefore,

he merely recorded their statements. According to him,

Kumar (A-9) then took them to the Hindu cremation ground

38

along with Udumalpet Road, Pollachi and in presence of

two other Thiruganasambandam and Anand (PW-41) took out

a blood stained aruval from thorny bush which was 50

feet away from the road on the Northern side in the

North East corner of the cremation ground. The said

confessional statement has been brought on record vide

Exhibit P.56 while the seizure Mahazar has been proved

as Exhibit P. 57.

32.Very heavy criticism was leveled by Ms. Mohana

against this discovery on account of the fact that while

the confessional statement was shown to have been made

before two different witnesses, namely, Jayraman and

C.P. Rajan, two other witnesses were kept present at the

time of actual discovery. We have seen the evidence of

Jayraman (PW-40) who has spoken about the confessional

statement having been made before him. In fact Exhibit

P.56 clearly suggests as also the evidence of this

witness that the confessional statement was made by

Kumar (A-9). He has also referred to the presence of

C.P.Rajan. He was cross-examined extensively by

defence. However, there was nothing brought out in

cross-examination. It was inspector himself who recorded

the statement on 29.10.93. We find nothing suspicious in

39

the evidence of this witness or even in the evidence of

PW-41, Anand. Anand has also stood firm during his

cross-examination. As has already been stated earlier,

the learned Counsel urged that two different sets of

witnesses could not have been used, one for the

confessional statement and other for the seizure

Mahazar. There is no rule that the same set of

witnesses have to be used for both purposes, namely, for

the confessional statement and the subsequent discovery

in pursuance thereto. Undoubtedly, if the same set of

witness is used, the discovery will become more

acceptable and would gain credibility as the witnesses

who have heard confessional statement would also have

opportunity to see that what was confessed has resulted

in the discovery in terms of the confession. But where

it is found that the witnesses are even otherwise

acceptable, there would be no question of rejecting the

discovery only on this count. It cannot be forgotten in

this case that the common witness PW-56 who was present

both at the time of confessional statement and the

subsequent discovery of aruval. The Inspector has given

a good explanation as to why he did not take the earlier

pair of witnesses, namely Jayraman (PW-40) and

C.P.Rajan. According to him those two witnesses left on

40

account of some work. We do not find this very unusual,

particularly, in the circumstances of this case. It has

been held by this Court in State of Himachal Pradesh Vs.

Jeet Singh [1999 (4) SCC 370] that even if there are no

witnesses present and the confession is made only to the

Investigating Officer, still the discovery can be

accepted. In this case that did not happen. The

confessional statement was undoubtedly made before a

witness who entered the witness box and offered himself

for cross-examination. Therefore, the fact that the

confessional statement was made cannot be disputed nor

can it be disputed that Kumar (A-9) ultimately

discovered the veechu aruval from the cremation ground.

33.It was then urged by the learned counsel that this

was a open place and anybody could have planted veechu

aruval. That appears to be a very remote possibility.

Nobody can simply produce a veechu aruval planted under

the thorny bush. The discovery appears to be credible.

It has been accepted by both the Courts below and we

find no reason to discard it. This is apart from the

fact that this weapon was sent to the Forensic Science

Laboratory (FSL) and it has been found stained with

human blood. Though the blood group could not be

41

ascertained, as the results were inconclusive, the

accused had to give some explanation as to how the human

blood came on this weapon. He gave none. This discovery

would very positively further the prosecution case.

34.This takes us to the other circumstances against

accused No.9, Kumar. The prosecution has brought on

record that the taxi No. TAC 5667 which was being driven

by Ganesan (A-8) had passed through Ooty. The

prosecution examined Senthil (PW-44) and Siddharth (PW-

43) to prove that the taxi passed through the check

post. There is nothing to disbelieve this fact.

Therefore, this fact must be accepted that taxi did pass

twice through Ooty. This circumstance has been accepted

by both the Courts below. It is, therefore, proved that

this taxi was in Ooty on 16.8.93. It cannot be disputed

that this was the taxi used by three accused persons to

travel from Tirunelveli to Coimbatore. There is the

evidence led by Senthil (PW-44) to prove that the

accused persons stayed in the night of 16-17/8/93 at

Hotel Arthi Lodge, Ooty. That circumstance was sought

to be proved by proving the entry No.1013 at Page 112 on

the Guest Register. The witness suggested that the

guests had come on the night of 16.8.1993 at about 7:00

42

p.m. A person, named, Kumar (A-9) came from Tirunelveli

and told his name as Kumar S/o Vellaichamy. He also

deposed that there were three other persons accompanying

the said Kumar and that they went to the room and left

at 6 a.m. on 17.8.93. Unfortunately, for the

prosecution though the investigation agency could lay

hands on the register, the witness did not identify any

of the accused persons and, more particularly, Kumar (A-

9). That may be a very slander circumstance. It does

further suggest that Kumar (A-9) had stayed in Ooty

along with two accused as was suggested in the

prosecution case. The criticism was that no accused

person was identified by this witness even in the Court.

In fact it would have been surprising had the witness

been able to identify the accused because he must have

met the accused only for a very short time when the

accused gave his name and address at Tirunelveli.

However, it cannot be a co-incidence alone that the full

name of the accused with his address in Tirunelveli

should find place in the register of Arthi Lodge. This

circumstance also has been accepted by the trial Court

and appellate Court and we find no reason to take a

different view.

43

35.The other circumstance against Kumar (A-9) is the

evidence of Ranjit Check (PW-50) who was a Scientific

Officer. In his evidence he asserted that he was

working as Scientific Officer in the Physics Department.

He examined M.O.20 which was a colour photograph of

deceased Vivekanandan which was found from the taxi in

its search. He matched M.O.20 with M.O.17 which was a

colour photo of Sunitha, the unfortunate widow of

Vivekanandan. He asserted that item Nos.1 and 2 which

were the photographs of a male and a female matched with

each other and that they were both the cut pieces of one

photograph, the colour factor in both the photographs

was identical, the rear side of the photograph was

matching and he, therefore, opined that items Nos.1 and

2 were the parts of one and the same photograph. It

must be remembered that the photograph of Sunitha was

found from the possession of Vekatraman (A-1) while the

photograph of deceased Vivekanandan was found from the

taxi in which Kumar (A-10), Pavunraj (A-10) and Prince

Kumar (A-11) travelled. He also asserted that the foot

print which was found in item No.3 footwear matched with

footwear which was found in item No.5 footwear. He

deposed on examination of the foot prints, the footprint

which was found in item No.3 footwear matched with one

44

that was found in item No.5 footwear. Therefore, he

asserted that the foot print in item No.3 matched with

footprint which was found as item No.5. It must be

remembered that this footwear was left behind on the

scene of occurrence and was seized by the Investigating

Officer on the same day. He, therefore, came to the

conclusion in the following aspects:

“1. General measurements

2. Shape of fingers

3. Shape and size of the bottom of the fingers”

He, therefore, opined that left foot print found in item

No. 3 and the left foot print found in item No. 5

footwear had been created by one and the same left foot.

Similarly the foot print of the right foot was also

found to be matching in item Nos.4 and 6. He,

therefore, issued a report (Exhibit P.73). We have seen

Exhibit P.74 and Exhibit P.75 as also the points of

agreement which have been arrived at in respect of both

the right and left foot. It seems that there was

absolutely no effective cross-examination of this

witness nor was the witness cross-examined on the

salient features that he deposed to. We do not find any

reason to discard this technical evidence. It was

45

proved that the said footwear was left by Kumar (A-9) as

it matched his feet and, therefore, we proceed to accept

this evidence also. This circumstance will directly

connect Kumar (A-9). It was contended by the

prosecution that the accused persons travelled in Taxi

No. TAC 5667. Once it was proved that the photograph

was lying under the back seat of the taxi, the relevance

of the taxi and the accused having travelled in the same

becomes all the more prominent.

36.Insofar as the other two accused persons are

concerned, we need not consider the case of A-11, Prince

Kumar since he has already died and his appeal has

become infructuous. Insofar as Pavunraj (A-10) is

concerned, apart from the fact that he was identified in

the identification parade by all the eye witnesses, he

was said to have discovered Rs.5000/- from the roof of

his house allegedly kept in a cover on which the words

‘Vijay Laxmi Mills Ltd’ had been printed. In the same

envelope there was a photograph of John Pandian. In his

deposition, Rathinasabapathy (PW-56) suggested that he

had examined accused Pavunraj when he arrested him and

during the interrogation he voluntarily gave a

confessional statement at 5.30 p.m. wherein he confessed

46

that he had hidden Rs.2000/- and a gold chain and that

when he was taken it was proved. Similarly, the

investigating officer deposed about the confessional

statement of Prince Kumar (A-11) that if he was taken he

would show the place where he had hidden the sum of

Rs.5,000/- and photograph of Annachi John Pandian (A-7).

Now, it so happened that when these accused persons were

taken on 17.9.1993 exactly reverse happened and Prince

Kumar (A-11) is said to have discovered Rs.2000/- and a

gold chain weighing 12 grams whereas Pavunraj (A-10) is

said to have discovered the envelope containing

Rs.5000/- and photograph of John Pandian. This was

obviously a mistake. When we see Exhibits P.113 and

P.114 it seems that Exhibit P.113 suggests that the

house from where the said amount of Rs.2000/- and the

minor chain was recovered in pursuance of the so called

confessional statement belonged to one Amalraj. Exhibit

P.113 was sought to be connected with Exhibit P.54 which

is supposed to be the confessional statement of

Pavunraj, while Exhibit P.55 was connected with Exhibit

P.114 and this confessional statement. Exhibit P.55 is

supposed to have been given by Prince Kumar (A-11).

When, however, we see the evidence of PW-56 there is

obviously a mix up because according to him while

47

Pavunraj has confessed about Rs.2000/- and a minor chain

that seems to have been recovered by Prince Kumar and

while Prince Kumar agreed to discover Rs.5000/- and

photograph of Annachi John Pandian, the said articles

were discovered by Pavunraj. This obvious mix up will

compel us to reject both these discoveries. In fact the

discoveries of Rs.2000/- and a gold chain would be of no

consequence as they cannot be said to have been

connected with the crime. On this backdrop of a mix up

when we seen the evidence of Jayraman (PW-40), that also

does not help the prosecution. However, as we have

pointed out earlier, there is sufficient evidence

against Kumar (A-9), Pavunraj @ Pavun (A-10) and Prince

Kumar @ Prince (A-11) and the trial and the appellate

Courts have correctly convicted them for the offence

under Section 302 in case of Kumar (A-9) and others with

the aid of Section 34 IPC.

37.This brings us to the case of Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-6) and

John Pandian (A-7). As has already been stated earlier,

the High Court has acquitted Ganesan (A-8), who was

convicted by the trial Court. The State Government has

not challenged his acquittal, leaving only the other

48

accused persons mentioned above. All these accused

persons have been convicted as being the conspirators.

Initially, when this appeal was filed, even Venkatraman

(A-1), who was convicted, had filed an appeal

challenging his conviction. He was also roped in as

being a conspirator. Since he has died during the

pendency of these appeals, we need not consider his case

and his appeal stands disposed of as infructuous. There

is no prayer before us to continue his appeal even after

his death and as such, his appeal being Criminal Appeal

No.454 of 2007 must be held to be infructuous; however,

Venkatraman (A-1) was a major player in the conspiracy

according to the prosecution’s case. The prosecution

pleaded that the idea of elimination of Vivekanandan

(deceased) must have been conceived in his mind owing to

inability to marry Sunitha (PW-3). Thus, he is painted

as the main conspirator who, for his evil desires, roped

in Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5), Abdul

Kareem (A-6) and John Pandian (A-7). It is the case of

the prosecution that he contacted John Pandian (A-7) who

was allegedly a powerful leader of a political party and

was resident of Tirunelveli. In terms of the

conspiracy, ultimately, John Pandian (A-7) arranged the

hired assassins, namely, Kumar Vellaichami (A-9),

49

Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince (A-11)

and that is how, ultimately, a plan was made for the

elimination of Vivekanandan (deceased) from this world.

It would be, therefore, necessary to find as to whether

any conspiracy of this nature at all was there. It will

be a further endeavour to find out as to whether the

present appellants Sivakumar (A-2), Ubaiadulla (A-4),

Yusuf (A-5), Abdul Kareem (A-6) and John Pandian (A-7)

were the conspirators and whether the prosecution has

been able to prove them as such. Voluminous evidence

has been laid and all the loose-ends have been tried to

be tied together for establishing that, firstly, there

was a conspiracy and secondly, these appellants

including Venkatraman (A-1) were the conspirators.

38.The strongest circumstance in support of the

existence of a conspiracy appears to be the fact that

the three totally unknown persons to Vivekanandan

(deceased) went all the way from

Palayamkottai/Tirunelveli and without any rhyme or

reason, fatally assaulted Vivekanandan (deceased).

Indeed the only inference which is possible is that the

three assailants were hired to act as the assassins of

Vivekanandan (deceased). There is no other inference

50

possible. Inspite of a very devoted investigation,

there is no nexus established between Kumar Vellaichami

(A-9), Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince

(A-11) on one part and Vivekanandan (deceased) on the

other. He was not known to them. He had got nothing to

do with them nor was there any enmity, any rhyme or

reason for these three assailants to come all the way

from Palayamkottai/Tirunelveli and to murderously

assault Vivekanandan (deceased). It must have been,

therefore, a plan, for execution of which the three

assailants did what is alleged against them. But, that

would not be sufficient. The charge of conspiracy under

Section 120B IPC was framed against original accused

Venkatraman (A-1), (A-2), Subramaniam (A-3), Ubaiadulla

(A-4), Yusuf (A-5), Abdul Kareem (A-6) and John Pandian

(A-7) and original accused Kumar Vellaichami (A-9),

Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince (A-11)

to prove the motive behind the murder of Vivekanandan

(deceased), which drew these accused persons together to

conspire for causing murder. The prosecution in the

first batch examined Krishnaraju Kalingarayar (PW-1),

Abhirama Vishnu (PW-2), Sunitha (PW-3), Ram Ganesh (PW-

5), Sivakumar (PW-6), Elango (PW-7) and Krishnaraj (PW-

10). Out of these, Krishnaraju Kalingarayar (PW-1) and

51

Abhirama Vishnu (PW-2) are the relatives, namely, the

father and brother of Vivekanandan (deceased)

respectively, while Sunitha (PW-3) is his wife.

Krishnaraju Kalingarayar (PW-1) spoke about the

relationship and the friendship of Vivekanandan

(deceased) with the other witnesses. The father also

spoke about the fact that Vivekanandan (deceased) and

Sunitha (PW-3) fell in love with each other and got

married. Similar is the evidence of Abhirama Vishnu

(PW-2). Sunitha (PW-3) spoke about the thickness of

friendship, as also her love affair with Vivekanandan

(deceased). She has spoken about the other friends of

Vivekanandan (PW-3) including Venkatraman (A-1). She

has also referred to Venkatraman’s so-called affair with

a girl Sherry. She has also referred to the fact that

Venkatraman (A-1) was feeling lonely on account of

Sherry having abandoned him and gone abroad and that

Venkatraman (A-1) used to be upset and dejected. She

then referred to his frustrated efforts to bring back

Sherry from Thiruvananthapuram. She also referred to a

divorce case between Venkatraman (A-1) and that girl.

She further referred to a help that he gave when she

with her husband shifted to the new house and about the

fact that he offered his company telephone No. 211558.

52

She has indirectly referred that Venkatraman (A-1) used

to yearn for her. She has also referred to the fact

that Venkatraman (A-1) had proposed to her though he

knew that she was going to marry Vivekanandan

(deceased). In her Examination-in-Chief itself, she

referred to the interrogation by the police. She said

that she did not know whether the police had looked into

their marriage album, though she admitted that police

had asked for the same. She also admitted that she had

given the same to her father-in-law. Very surprisingly,

there is very little or no cross-examination of

Krishnaraju Kalingarayar (PW-1), the father of

Vivekanandan (deceased) and Abhirama Vishnu (PW-2), the

brother of Vivekanandan (deceased) on the question of

the photograph. It must be remembered at this juncture

that the photograph which the police found from the Taxi

driven by Ganesan (A-8) was the cut photograph from the

marriage photograph of Sunitha (PW-3) and Vivekanandan

(deceased) and it was on that basis, defence tried to

prove with the prosecution that the common photograph of

Sunitha (PW-3) and Vivekanandan (deceased) was neatly

cut into two parts. While Sivakumar (A-2) kept the

photograph of Sunitha (PW-3) with him, the photograph of

Vivekanandan (deceased) was found in the taxi with

53

Ganesan (A-8). It was tried to be suggested by Shri

Senthil Jagadeesan, learned Counsel for the appellants

that the marriage photograph was supplied by Sunitha

(PW-3) and it was police which cut it into two parts and

planted the same in the taxi of Ganesan (A-8). The

theory must fall down immediately for the simple reason

that the other part of the photograph is alleged to have

been seized from the house of Venkatraman (A-1). Had

the police taken the photograph from the marriage album,

they could not have planted the other half in the house

of Venkatraman (A-1).

39.The other witnesses are Veerendrakumar Gupta (PW-4)

and Ram Ganesh (PW-5). He referred to the fact that

Venkatraman (A-1) had become a little upset on account

of the decision of marriage between Sunitha (PW-3) and

Vivekanandan (deceased). He also asserted that even

after the marriage, Venkatraman (A-1) used to move

closely with Vivekanandan (deceased) and Sunitha (PW-3).

There is nothing in his cross-examination to refute his

claim that Venkatraman (A-1) had become upset after

hearing about the proposed marriage of Vivekanandan

(deceased) and Sunitha (PW-3). Sivakumar (PW-6) is also

one of the friends of the couple and spoke about

54

Venkatraman (A-1) being close to the couple and moving

together with them. Elango (PW-7) is another witness

who was friendly with the couple. He has referred to a

peculiar fact that immediately after the murder, he,

Sunitha (PW-3) and Venkatraman (A-1) were on the spot

and he told Venkatraman (A-1) to send for the vehicle to

take Sunitha (PW-3), on which Venkatraman (A-1) had said

that people would mistake (misunderstand). There was no

reason for Venkatraman (A-1) to feel so. This claim

could not be demolished in the cross-examination, though

specific questions were put about this subject.

Venkatachalam (PW-9) was doing a business of screen

cloths (tapestry). He spoke about Venkatraman (A-1),

Vivekanandan (deceased) and his wife (Sunitha) having

come to his showroom for selecting cloth of curtains.

He asserted that the bill was paid in parts by

Venkatraman (A-1), though after about 2-3 months. The

reason why Venkatraman (A-1) paid for the curtains is

obvious. Probably Venkatraman (A-1) wanted to impress

Sunitha (PW-3). There is no cross-examination on this

vital aspect. The last witness in this group is Zakria

(PW-10), who was the classmate of Venkatraman (A-1). He

specifically asserted the same story like the other

witnesses. The witness has also referred to the

55

conversations with Venkatraman (A-1). He said that

during those conversations, Venkatraman (A-1) used to

say that Vivi (Vivekanandan) must be lucky to have a

girl like Sunitha (PW-3) and that if only Vivi

(Vivekanandan) had not been there, he would have tried

and married Sunitha (PW-3). He has also referred to the

love affair of Venkatraman (A-1) with Sherry and the

fact that she abandoned him and got married to the

person of her own community. The witness has also

referred to the efforts made by Venkatraman (A-1) by

going to Thiruvananthapuram and showing his marriage

certificate to the pastor of a church there, whereafter

the pastor said that it was only a marriage agreement,

meaning thereby that it was not a valid marriage

certificate. The witness then referred to the fact that

a record was created as if the marriage had taken place

at his residence at Tirupur, where Vivekanandan

(deceased) signed as first witness and he has signed as

second witness. What transpires from his evidence is

that he was very close both to Venkatraman (A-1) as well

as to the deceased. It has also come in his cross-

examination that he and Vivekanandan (deceased) used to

advise Venkatraman (A-1) not to be upset and get

married, on which Venkatraman (A-1) used to express that

56

there was no new girl in his life. He has also referred

to the fact that before the marriage of Vivekanandan

(deceased), Venkatraman (A-1) used to say that if only

Vivi (Vivekanandan) had not been there, he would have

tried and married Sunitha (PW-3). There can be no

dispute that this witness was very close both to

Vivekanandan (deceased) as well as to Venkatraman (A-1),

so much so that he had gone to the extent of creating

record suggesting the marriage between Venkatraman (A-1)

and Sherry. It has further come in his cross-

examination that even before he had prepared the

documents showing the marriage between Venkatraman (A-1)

and Sherry, they were already married. It has further

come that Venkatraman (A-1) had told him that the

documents were prepared changing the name as though the

marriage had taken place at his residence. All this

proves the proximity of relationship between the witness

and Venkatraman (A-1). There can be no dispute,

therefore, that Venkatraman (A-1) was madly in love with

Sunitha (PW-3). He had also offered to Sunitha (PW-3)

for marriage, but his offer was not accepted; instead

Sunitha (PW-3) got married to Vivekanandan (deceased)

after which Venkatraman (A-1) started feeling dejected

and upset, so much so that he expressed that if only

57

Vivi (Vivekanandan) had not been there, he would have

tried and married Sunitha (PW-3). From all this

evidence, it is obvious that Venkatraman (A-1) was a

frustrated soul, particularly after he broke with Sherry

who had abandoned him and got married to the person of

her own community and gone abroad. Venkatraman (A-1)

was in the disturbed emotional state as has rightly been

inferred by the prosecution. The clueless assassination

of Vivekanandan (deceased) when read with this evidence

suggests that this yearning on the part of Venkatraman

(A-1) for Sunitha (PW-3) was a driving force behind the

motive to eliminate Vivekanandan (deceased).

40.The other circumstance against this accused was his

suspicious behaviour after the murder. He had kept an

amount of Rs.3.97 lakhs in the Laxmi Vilas Bank,

Thirupur from 16.7.93 to 30.7.93 as per the evidence of

PW-24, Krishamurthy. The prosecution tried to say that

this amount was deliberately kept. It was from this

account of Thirupur Branch that cheque No.162883 dated

30.7.93 for Rs.3 lakhs was encashed. That was signed by

Venkatraman (A-1). It was a self cheque and was brought

by Sivakumar (A-2). Sivakumar was identified by

Krishnamurthy (PW-24). The cheque was proved as Exhibit

58

P-24. Sivakumar’s signatures were proved at Exhibit P-

25. It was, therefore, alleged that Venkatraman (A-1)

gave Rs.3 lakhs to Sivakumar who was a mere office boy

by signing a self cheque. The prosecution claims that

substantial amount of over one lakh rupees was found

with Sivakumar when he was arrested after the murder.

We will consider all this at the time when we consider

the case of Sivakumar (A-2). Presently, it is

sufficient to show that Venkatraman (A-1) who was the

Mill owner had got one cheque encashed through a mere

office boy like Sivakumar (A-2). Some other evidence

was that Elango (PW-7) had suggested to this accused to

send for the vehicle to take Sunitha in his car when the

accused is said to have said that people will mistake

Sunitha in his car. Thereafter, he got into another

vehicle and left. The prosecution suggested that this

suggested the mind of Venkatraman (A-1).

41.Lastly, the evidence of PW-27, Manoj Kumar was

tendered. He was the friend of Venkatraman (A-1) and

the whole group. He deposed that on 17.8.93 he came to

know about the murder of Vivekanandan. He also attended

his funeral and stayed in his father-in-law’s house at

Kurichi. He was examined by the Inspector after three

59

days. He claims that at 12 O’ Clock in the midnight

Venkatraman (A-1) had phoned up to his residence when

Venkatraman (A-1) agitated and complained that a girl

calling herself to be Sunitha had telephoned him and

abused him in English saying that he alone killed

Vivekanandan and thereafter the girl hanged up the

phone. Venkatraman (A-1) requested this witness to

telephone Sunitha and ask as to whether she telephoned

him. The witness expressed his inability to telephone

at the dead of night and promised that he would talk to

Sunitha in the morning. He ultimately gave a promise to

Venkatraman (A-1) that the matter would be enquired on

the next day. It is the claim of this witness that

after about half an hour, Venkatraman (A-1) came to his

house himself and at that time he was pale and sweaty

and asked him to telephone and ask Sunitha. Manoj Kumar

again convinced him that no contact should be made in

the night. In his cross-examination it has come that

when Vivekanandan decided to marry Sunitha, Venkatraman

had become very upset. Some minor omissions were

pointed out from his cross-examination that he had not

used the word ‘upset’ in the police examination. He

admitted in the cross-examination that Venkatraman had

telephoned on the next day after the Police Inspector

60

examined him. Now this is a mistake committed by the

witness because in the examination-in-chief his claim

was that it was on the same night that Venkatraman had

telephoned him. Be that as it may, all this suggests

that Venkatraman (A-1) was extremely disturbed. The

contradiction is of no consequence as to whether the

telephone call was made in same night or after three

days. There has been no cross-examination to suggest

that there was no telephonic call or meeting of

Venkatraman with this witness. We, therefore, accept

the evidence of this witness to the extent that

Venkatraman (A-1) had insisted upon telephoning Sunitha

and asking her whether she had telephoned him and

further that he was extremely agitated so as to visit

the witness, Manoj Kumar (PW-27) in the dead of night.

All this lends support to the theory that Venkatraman

(A-1) was very closely connected with the whole affair.

However, the question would still be as to whether

Venkatraman (A-1) had conspired with Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-6) and

John Pandian (A-7) to eliminate Vivekanandan from this

world.

61

42.Before we go to consider the case against the other

accused it will be better to see the role played by John

Pandian (A-7). As per the prosecution case, he was the

main link besides Venkatraman (A-1). The prosecution

pleaded that Venkatranam (A-1) contacted John Pandian

(A-7) through Sivakumar (A-2), Ubaiadulla (A-4), Yusuf

(A-5), Abdul Kareem (A-6) and, more particularly,

through Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-

6) one of whom knew John Pandian (A-7). It seems to be

the prosecution case that through these three accused

persons Sivakumar (A-2) also contacted John Pandian (A-

7) and it is on account of this that John Pandian (A-7)

ultimately arranged the killers Kumar (A-9), Pavunraj

(A-10) and Prince Kumar (A-11). We have very closely

checked the evidence against John Pandian (A-7). The

case of the prosecution is that though Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-6)

travelled to Madurai and possibly further to Tirunelveli

they could not contact John Pandian (A-7) and came to

know that he had already gone to Chennai and, therefore,

they proceeded to Chennai perhaps to contact him.

Gonsaluez (PW-20) is the Railway Officer. He proved

Exhibits P-14 and P-15. Exhibit P-14 is the railway

reservation request form and Exhibit P-15 is the

62

reservation Chart for S2 coach. Cyril Raj (PW-21)

proved Exhibits P-16 and P-17. Exhibit P-16 is the

railway reservation requisition and Exhibit P-17 is the

reservation chart of S1 coach. It is apparent from

Exhibit P15 that the reservation chart for sleeper class

that on 17.7.1993 Tamil Selvan Abdul Karim, Sivakumar

and Yusuf travelled from Coimbatore to Madurai. The

reservation slip also suggests that these four, namely,

Abdul Karim, Yusuf, Sivakumar and Tamil Selvan had

travelled. It is clear from another document that on

19.7.1993, four persons bearing these very names

travelled from Madras Central to Coimbatore. From this

the prosecution alleged that firstly these four persons

went to Madurai and probably from there they went to

Tirunelveli and stayed in a hotel called Blue Star.

These two witnesses were cross-examined. However,

nothing could be brought from their cross-examination.

But the witness was not able to identify any of the

accused. He went to the extent of saying that he did

not even know the Clerk who filled up the reservation

form. The railway application seems to have been singed

by A-2, Sivakumar.

63

43.PW-42, R. Srinivasan is the hand writing expert who

proved Exhibit P-14. This witness deposed that the

train ticket reservation form (Exhibit P-14) the

signature on the cheque (Exhibit P.25) dated 30.7.1993

drawn on Laxmi Vilas Bank (Exhibit P-24), further the

railway ticket reservation form (Exhibit P-16) dated

19.7.1993 as also attendance register in Jankiraman

Hotel in Tirunelveli (Exhibit P-20), further the carbon

copy of the cash receipt No.35354 Exhibit P-21 which was

issued by the hotel dated 18.7.1993 and Exhibit P.26

which was the attendance register at page 48 dated

1.8.1993 pertaining to hotel Blue Star, Tirunelveli vide

Exhibit P-27. He examined these signatures which were

all made by Sivakumar (A-2). He also claimed to have

examined the other documents which were Exhibit P-29 the

attendance register of New Vijaya Lodge, Coimbatore

allegedly bearing the signature of John Pandian (A-7) as

also the attendance register of Arthi Lodge, Ooty and

Sudarshan Lodge, Udumalpet. These documents were

alleged to be bearing the signatures of John Pandian (A-

7). According to him he compared all these documents

with the specimen signature of Sivakumar and the

signatures of Tamil Selvan @ Ubaiadulla. Ubaiadulla’s

signatures were found in pages of Minutes Book of

64

Coimbatore Dravida Kazhagam Youth Wing. In his

evidence, he also examined the specimen signatures of

Venkatraman (A-1) and the specimen signature of

Pavunraj. In his evidence he claimed that the

signatures marked as Exhibit P-14, the reservation slip

marked as Exhibit P-24 the cheque and the hand writing

marked as S1 to S7 and A-1, were written by Sivakumar

(A-2). S1 to S4 pertained to standard signatures of

Sivakumar. He, however, deposed that there was a

possibility for the same persons writing the document

marked Q1 which was the reservation slip Exhibit P-14.

Similarly in respect of Tamil Selvan also he gave the

opinion that the handwriting marked as S8 to S14 and

signatures B1 to B8 as also signatures Q5, Q8, Q9, Q11

and Q12 were written by him. He also suggested the

possibility of the same person writing Q4, Q6, Q7 and

Q10. It will be seen that Q5, Q6, Q8 pertain to

Jankiraman Hotel, Tirunelveli while Q10 pertained to

Blue Star Hotel Tirunelveli. Again Q12 is the

signatures on the carbon copy of receipt No. 72250

(Exhibit P-27) while Q13 is signatures on the cheque

bearing No.162883 dated 30.7.93 which is proved to have

been in his handwriting. He has not spoken about John

Pandian (A-7) or his alleged writing.

65

44.On this backdrop when we see the evidence of K.P.

Rajan (PW-18) and the documents proved by him being

Exhibit P-8, P-9, P-10, P-11 and P-12. Exhibits P-11 and

12 pertained to marked portion of visitors’ book dated

18.7.93 where he is shown to be staying in MLA’s room.

Exhibit P-11 and 12 also show his name which receipts

pertained to dates 27.7.1993 and 24.7.1993,

respectively. In his evidence he claimed to be working

as a Joint Secretary in the MLA’s hostel in the year

1993. He claimed from the documents Exhibit P8 and 9

that room No.40 was allotted for five days to one S.

Bhaskar who was the guest of Thiru Se.Ku. Thamizharasan,

MLA. He also deposed on the basis of Exhibit P-9 which

is visitors register that one Visu had come to visit

John Pandian while one M. Kumar had come to meet John

Pandian on 27.7.1993. Again on 27.7.1993 one P. Mani had

come to visit John Pandian. In his cross-examination he

admitted that he was not directly aware of the entries

made in the register. Be that as it may, this witness

has neither identified John Pandian earlier as there was

no identification parade held in case of John Pandian

nor has he identified him even in the Court. We are not

in a position to hold as to how the mere name of John

Pandian could be connected with John Pandian (A-7) as

66

nobody identified him. If there were entries of the

persons visiting John Pandian, none of them pertained to

Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5) and Abdul

Kareem (A-6), which was the case of the prosecution.

The investigating agency has done nothing to get John

Pandian idenfied at least through the Receptionists who

worked in the MLA’s house during the relevant period.

It has come that the visitor was seen by watchman. No

such watchman was examined nor was John Pandian got

identified by such a watchman. The witness drew

complete blank as to who was the watchman on duty.

Those records were also not seized. Therefore, the oral

evidence of this witess or the contents of Exhibit P8 to

12 do not connect John Pandian. Therefore, it cannot be

presumed that Sivakumar (A-2), Ubaiadulla (A-4), Yusuf

(A-5), Abdul Kareem (A-6) either went to or met John

Pandian in MLA’s hostel. Merely because it is proved

that they travelled from Madurai to Madras in a train.

The prosecution wanted to suggest that accused Nos. 5

and 6 belonged to PMK party and they had accepted this

in their examination under Section 313, Cr.P.C. There

is an admission by Yusuf (A5) and Abdul Kareem (A-6)

that they had known John Pandian A-7 since A-7 was the

State Youth Wing Secretary of PMK. It was tried to be

67

suggested that acquitted Ganesan (A-8) was a person of

confidence of John Pandian (A7) and that is why he went

to the police station when Ganesan (A-8) was arrested.

Similarly, it was suggested that Kumar (A-9) was John

Pandian (A7)’s man and both of them knew each other. In

all these circumstances the prosecution relied on the

answers given by the accused persons in their Section

313 Cr.P.C. examination. The law in this behalf is very

clear. The examination of the accused cannot be

dissected so as to rely on the inculpatory part and

ignore the exculpatory part. The examination of the

accused has to be read as a whole. It is very difficult

to nail John Pandian (A7) merely on the basis of the

answers given by Yusuf (A5) and Abdul Kareem (A- 6) that

they knew John Pandian A-7 or that Kumar (A-9) and

Pavunraj (A-10) knew A-7. Even if it is presumed that

Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5), Abdul

Kareem (A-6) stayed in Jankiram Hotel or Blue Star Hotel

and even if it is presumed that they travelled from

Tirunelvi to Madras and further even if it is presumed

that John Pandian (A-7) went for the rescue of Ganesan

(A-8), the acquitted accused, when he was put behind the

bar on account of loss of a car bearing No. TAC 5667

Exhibit P34 it is not enough to connect John Pandian (A-

68

7) effectively with the other accused persons. There is

simply no evidence of any nexus between Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-6) on the

one hand and John Pandian (A-7) on the other. The only

other evidence which was very heavily relied upon was

the evidence of PW-39 Mohd. Rafi a telephone operator

who claimed that he was running the telephone booth at

Ukkadam with booth No. 30893. He claimed to have a

computerized billing system. He proved the record of

the telephonic calls made from that booth from 31.7.93

and proved Exhibit P-53. Very significantly this

witness was not even able to identify any of the accused

persons. When we see Exhibit P-53 it seems that few

calls were made from his booth No, 72324 of Tirunelveli.

This by itself does not take us anywhere either to

connect Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5),

Abdul Kareem (A-6) independently or their connection

with John Pandian (A7). After all John Pandian A-7 was

claimed to be belonging to a political party. Merely

because some calls were made to his house that will not

go to establish that only Sivakumar (A-2), Ubaiadulla

(A-4), Yusuf (A-5), Abdul Kareem (A-6) made those calls

and the calls were in respect of the conspiracy.

69

45.Two other witnesses, namely, Shanmugasundaram (PW-

30) and Sabeer (PW-34) were examined by the prosecution

in respect of the talks of Sivakumar (A-2) and

Ubaiadulla (A-4) with John Pandian (A-7).

Shanmughsundaram (PW-30) was doing business of buying

and selling sacks in Big Market, Ukkadam. He identified

Sivakumar (A-2), Yusuf (A-5) and Abdul Kareem (A-6). He

also deposed that a leader of Dravidar Kazhagam from

Kuniamuthur used to come whose name was Sivakumar and

they used to be talking to each about something. He

claimed that they usually go to STD booth and make calls

and also deposed that he had heard there was some

problem between the owner of Vijayalaxmi Mills and

another person who was running finance business at

R.S.Puram [probably the deceased]. He flatly refused to

have been examined by the police Inspector. In his

cross-examination he admitted that he was an accused in

a murder case and that when he was examined by the

police Inspector he was a member of Hindu Munnani. He

also admitted that Hindu Munnai and Dravidar Kazhgam

differed with each other on their policies. He did not

have any documentary proof to suggest that he was a

resident of Multhuvinayagar Street or residing at House

No.52. He admitted that he had no account for

70

purchasing and selling. On the whole, the evidence of

this witness does not inspire confidence at all.

46.The other evidence is that of PW-34, Sabeer. He

was running a mango fruit shop at Ukkdam. He claimed

that he did not know anything about the case. He also

identified Kareem (PW-6) and Yusuf (PW-5) who used to

come to his shop for buying the fruits. He was declared

hostile. There is nothing in his cross-examination

which would give credence to the prosecution case.

Therefore, even if it is presumed that some calls were

made from Ukkadam telephone booth to the telephone

number of John Pandian (A-7) that by itself will not

prove that the calls were made only by Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-6). All

the evidence, therefore, when we consider, does not

connect John Pandian (A-7). It could at the most raise

suspicion. However, the law is clear that howsoever

strong the suspicion may be, it cannot take place of the

proof required to convict the accused.

47.We are quite in agreement with Shri Ramamurthi,

learned counsel appearing for the State that the

evidence of conspiracy is very hard to be found and the

prosecution would always have a great difficulty in

71

proving the conspiracy and, therefore, the conspiracy

has to be inferred. There can be no doubt that there

was a conspiracy to eliminate Vivekanandan from the

scene and from this world. However, again the question

remains as to whether there is sufficient evidence to

connect John Pandian (A-7) with the conspiracy itself.

One must realize that if no connection is established

with John Pandian (A-7) excepting for a few phone calls

from Ukkadam to his house and the fact of Sivakumar (A-

2), Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-6)

travelling from Coimbatore to Madurai and from Chennai

to Coimbatore it does not connect John Pandian (A-7)

successfully. We have said that could be the case of

suspicion. Further no effort has been made by the

prosecution to identify John Pandian (A-7). He could

have easily been identified by the staff at MLA’s

hostel. For some mysterious reasons that was not done.

There could have been some evidence to suggest that he

had some nexus with Kumar (A-9), Pavunraj (A-10) and

Prince Kumar (A-11). Even the evidence in that behalf is

far from being satisfactory. Under these circumstances,

even if the trial Court and the High Court have found

John Pandian (A-7) to be a conspirator it will be

extremely difficult to hold him so. We therefore,

72

proceed to grant him benefit of doubt.

48.We will next take the case of A-5, Yusuf @ Abdullah

Yusuf. There is hardly any evidence against him which

can brand him as a conspirator. It was suggested that

he was friendly with other accused, namely, Sivakumar

(A-2), Ubaiadulla (A-4) and Abdul Kureem (A-6). He has

been brought into the dragnet on the basis of his name

being found in Exhibits P-14, P-15, P-16 and P-17.

While in Exhibit P-15 it is shown that one Abdullah

Yusuf, male, 25 years of age travelled from Coimbatore

to Madurai, in Exhibit P-17 the name has been shown as

Yousuf. What the prosecution has been contending is

that the four persons, namely, Sivakumar (A-2),

Ubaiadulla @ Tamil Selvan (A-4), Yusuf (A-5) and Abdul

Kareem (A-6) travelled together. It is significant that

this accused, like the other friends of him like

Sivakumar (A-2), Ubaiadulla (A-4) and Abdul Kareem (A-6)

was never put up for identification. If the prosecution

alleged that he stayed at the Sri Jankiram Hotel or Blue

Star Hotel, he could have been got identified by the

staff of those hotels. That was not done. The travels,

even if accepted, do not connect him with the conspiracy

at all as it could be for any purpose. This is apart

73

from the fact that no attempt was made to identify him

even by the railway staff of the train in which he

travelled. Gansaluez (PW-20) and Cyril Raj (PW-21) have

not identified him even in the Court. The only other

evidence against him is by Shanmugasundaram (PW-30) who

was a vendor, Sabeer (PW-34) who was also a small fruit

vendor in Coimbatore and Mohd. Rafi (PW-39) who was the

STD booth owner. It was claimed that he along with

other accused, namely, Sivakumar (A-2), Ubaiadulla (A-4)

and Abdul Kareem (A-6) made calls from the STD booth of

PW-39, Mohd. Rafi. That is all the evidence against

this accused. We have already shown that the evidence

of Shanmugasundaram (PW-30) does not inspire any

confidence. All that he has said is that Sivakumar (A-

2), Yusuf (A-5) and Kareem (A-6) used to go the STD

booth and make calls. There is nothing suspicious about

that. After all there could have been hundred other

reasons to make calls. We are again not impresses

either by his evidence that he has said that Sivakumar

(A-2) was the leader of Dravidar Kazhagam who was from

Kuniamuthur. Barring this witness, nobody has made

such a tall claim. We see that both the Courts below

have found his evidence to be truthful. However, we do

not approve of the stand take by the two courts below on

74

his evidence. Similarly, Sabeer (PW-34) who knew this

accused as allegedly this accused used to purchase

fruits from him. Beyond that, Sabeer has said nothing.

He was declared hostile and there is nothing in his

cross-examination. PW-39 Mohd. Rafi also did not say

that this accused used to come and make calls. Beyond

proving the call register there is nothing much in the

examination of this witness. In that view, it is

difficult to see any role much less important role being

played by this accused in furtherance of conspiracy

excepting the fact that he moved along with other

accused persons. There is nothing to suggest that he

had any nexus with the so-called conspiracy for

eliminating Vivekanandan. He had no enmity with

Vivekanandan. These travels along with the accused

cannot be said to be the links or prove any part of the

conspiracy alone. His travels could have been for

various other reasons. We do not approve of the finding

of the trial Court and the appellate court that on the

basis of this evidence this accused could be roped in

the conspiracy. Shri Ramamoorthy tried to justify his

conviction. However, we are not at all impressed by the

prosecution case. He, therefore, deserves acquittal.

75

49.Next we will consider the case of A-6, Abdul Kareem

@ Kareem who is described as Hareem also. Again, his

participation in the conspiracy is tried to be proved

from the railway travels and mentioned in Exhibits P-14,

P-15, P-16, P-17 and also by witnesses PW-20, Gonsaluez

and PW-21, Cyil Raj. We are not at all impressed by

that substance, as we have held earlier. PW-23, Ram

Kumar was the witness who been examined to suggest that

this accused stayed in Jankiram Hotel. It was through

him that Exhibits P-20, P-21 and P-22 were got proved.

He deposed that one N. Thamizhselvan of Coimbatore had

come and stayed on 18.7.1993 and there were four other

persons along with him and they had taken two rooms,

being Room Nos. 409 and 407. What is significant is

that it is claimed that from room No.409 telephone calls

were made to the local number 72324 which was the

telephone number of John Pandian (A-7). We would have

been impressed by this evidence if this witness had at

least in the Court identified any of the accused,

namely, Tamil Selvan @ Ubaiadulla, A-2 Sivakumar and

this accused. What is significant to note is that

according to this witness there were five persons in all

but who the fifth man was not established at all. We

have seen Exhibits P-20 and P-21. They do not in any

76

manner connect this accused or for that matter even

Sivakumar (A-2) and Ubyadullha (A-4). He was similarly

tried to be roped in by Shanmugasundaram (PW-30), Sabeer

(PW-34) and Mohd. Rafi (PW-39). We have already

rejected their evidence. PW-26 was Ramasubramaniam who

spoke about the stay of Tamil Selvan (A-4). However,

though it was the prosecution case that Tamil Selvan was

accompanied by other accused persons, he said nothing

about the others nor did he even identify Tamil Selvan

in the Court. Even this accused was not put up for

identification by Ramasubramaniam (PW-26) or by Ram

Kumar (PW-23). The only other witness posed against him

is PW-38, K. Veerasamy who acted as the mahazar witness.

According to this witness, this accused had discovered

Rs.18,000/-, two sovereigns gold chain and a scooter.

He proved Exhibit P-45. The seizure memo is Exhibit P-

48. In our opinion, this discovery would be of no

consequence whatsoever unless material objects

discovered are connected to the crime in any manner.

Nobody deposed as to who had paid money to this witness

nor has it been brought on record that it was he who

purchased the so-called gold chain and the scooter and

even if he has, the prosecution has miserably failed to

show that the money passed to him was only from

77

Venkatraman (A-1) via Sivakumar (A-2). Therefore, on

the basis of discovery, it will be extremely risky to

book this accused and hold him a member of the

conspiracy. It must be said that all these aspects were

viewed by the trial and the appellate Court with

jaundiced eyes. Merely because there are some

discoveries they do not in any manner connect the

accused and there is no presumption that merely because

the accused has some things in his possession, which he

fails to explain, therefore, all this money and the gold

chain must have come only on account of the money that

he had allegedly received as a member of the conspiracy

from Sivakumar (A-2). In our opinion, this evidence

would fall short to hold that he was a member of the

conspiracy. This may, at the most, raise suspicion

against him but that would be completely without any

justification. This accused would, therefore, has to be

given the benefit of doubt.

50.Our comments against Yusuf (A-5) and Abdul Kareem

(A-6) would equally apply to Ubaiadulla @ Tamil Selvan

(A-4). We have already commented that we are not

impressed by the travels made by this accused alongwith

the other three accused persons, namely, Sivakumar (A-

78

2), Yusuf (A-5) and Abdul Kareem (A-6). We have

extensively commented on the evidence of Gonsaluez (PW-

20), a Railway Officer, Cyril Raj (PW-21), another

Railway Officer, Ram Kumar (PW-23), who was the owner of

Jankiraman Hotel and Ramasubramaniam (PW-26), who was

the owner of Blue Star Hotel. None of these witnesses

have identified Tamil Selvan (A-4). In fact, much

stronger evidence is expected in respect of this person

who is said to be the author of the entries in arrival

register of Blue Star Hotel, Tirunelvelli vide Exhibit

P-26. However, this accused was neither identified by

Ram Kumar (PW-23) even in the Court nor was he put up

for identification parade. Shri K. Ramamoorthy, learned

Senior Counsel, very heavily relied on the evidence of

R. Srinivasan (PW-42) to suggest that it was proved that

the entries in Blue Star Hotel were in the handwritings

of this accused. That may be so. The evidence of a

handwriting expert is not be all and end all of the

matter. Where the witness had seen the accused, it

would have been much better had he been put up for

identification parade and identified by the witness or

at least had he been identified by the witness in the

Court. In fact Mr. Anand, learned Counsel for

Ubaiadulla @ Tamil Selvan (A-4) very seriously contested

79

the claim of the prosecution that this accused was also

known as Tamil Selvan. We do not see as to why

Ubaiadulla, obviously being a Muslim gentleman, should

have taken a name of Tamil Selvan. There is no evidence

led on behalf of the prosecution to support that he was

also known as Tamil Selvan. Prosecution could have led

some evidence, but that was not done. Insofar as the

evidences of Shanmugasundaram (PW-30) and Mohd. Rafi

(PW-39) are concerned, we have already rejected them.

51.Shri Ramamoorthy, learned Senior Counsel further

relied on the evidence of Francis @ Chellakili (PW-31)

to suggest that the Inspector of Police had seized the

minute book dated 26.7.1992 vide Exhibit P-30 and

Exhibit P-31 dated 22.7.1992. The witness claimed

himself to be the Deputy President, District Youth Wing

of Dravidar Kazhagam and suggested that vide those

resolutions dated 22.7.1992 and 26.7.1992, it was

resolved to convene a conference at Madurai and to do

some other activities like conducting a cycle procession

on the eve of Periyar’s birth anniversary. He suggested

that one Tamil Selvan had signed in the resolutions.

The witness has not even identified Ubaiadulla @ Tamil

Selvan in the Court. This accused was not even put up

80

for identification parade at the instance of Francis @

Chellakili (PW-31). He, in his cross-examination, very

specifically stated that there was no person named Tamil

Selvan amongst the accused persons and that the one whom

he was referring to, hailed from Vellanur. In fact, the

same evidence was given when he was re-examined. In his

re-examination, he spoke about Sivakumar (A-2). The

very fact that the witness has not been able to identify

either Sivakumar (A-2) or Ubaiadulla @ Tamil Selvan (A-

4) in the Court, speaks about the brittle quality of his

evidence. We are not at all convinced by this claim.

52.L.H. Krishnan (PW-55) claimed that he took specimen

handwritings of Sivakumar (A-2) and Ubaiadulla @ Tamil

Selvan (A-4). It is claimed by Mr. Ramamoorthy, learned

Senior Counsel that he was asked to write the word

“Tamil Selvan” five times. R. Srinivasan (PW-42), in

his evidence, has referred to the handwriting of Tamil

Selvan and claimed that the ticket reservation form

(Exhibit P-16) was allegedly singed by M. Thamizhselvan

(Tamil Selvan). Similar entry was made in the

attendance register of Jankiram Hotel vide Exhibit P-20

and the cash receipt (Exhibit P-21), as also the

attendance register of Blue Star Hotel (Exhibit P-26)

81

and the carbon copy of receipt (Exhibit P-27) were

compared with the admitted specimen signatures of Tamil

Selvan. In his opinion, Exhibit P-16 marked as Q5,

Exhibit P-20 marked as Q8, Exhibit P-21 marked as Q9,

Exhibit P-26 marked as Q11 and Exhibit P-27 marked as

Q12 were written by him. As regards the rest, there was

a possibility of the same person having made the

handwritings. From this, Shri Ramamoorthy urged that

the presence of this accused in Jankiram Hotel and Blue

Star Hotel was established and, therefore, it was clear

that not only had this accused travelled, but had also

arranged for the reservations etc. and had taken an

active part in staying with the other accused persons in

Jankiram Hotel and Blue Star Hotel. We have already

commented on the travel aspect. That does not impress

us at all. But even if it is held that Tamil Selvan had

reserved and that it was Tamil Selvan whose admitted

handwriting tallied with that handwriting, it may, at

the most, prove the presence of Tamil Selvan in those

Hotels. In our opinion, that is not sufficient to rope

him in the conspiracy. The established law is that

every such circumstance, which is relied upon by the

prosecution for establishing conspiracy, must be proved

to have nexus with that conspiracy. In the absence of

82

any convincing evidence, merely because the accused

travelled together with others and he stayed in those

two Hotels, it cannot be said that it was in order to

perpetrate a conspiracy. We have already expressed our

doubts regarding his identification. In the absence of

his identification, even if these handwritings go to

prove his presence, that may, at the most, raise a

suspicion against the accused, which in our opinion, is

not sufficient. He is said to have discovered a Titan

watch vide M.O. 11 and cash vide M.O. 12. We do not see

as to how any of these material objects can be connected

with the conspiracy. No evidence has been brought on

record to suggest that he could not have Rs.23,000/-.

The evidence of discovery is again a weak kind of

evidence and this Court, on a number of occasions, has

refused to rely solely on the discovery evidence. There

is nothing brought on record suggesting that these

23,000 of rupees were paid to him by Venkatraman (A-1)

via Sivakumar (A-2). There is no connection established

in between him and John Pandian (A-7) or for that

matter, Kumar s/o Vellaichami (A-9), Pavunraj @ Pavun

(A-10) and Prince Kumar @ Prince (A-11). In the absence

of all these materials, it will be extremely risky to

convict him on the basis of his being a conspirator. It

83

was further suggested that in the arrival registers

being Exhibit P-20 and Exhibit P-26 pertaining to

Jankiram Hotel and Blue Star Hotel respectively, he gave

the same wrong address as Tamil Selvan, Gandhipuram,

Coimbatore. In our opinion, this is an extremely weak

circumstance to book Ubaiadulla @ Tamil Selvan (A-4).

We, therefore, proceed to give him benefit of doubt.

53.The last accused is Sivakumar (A-2). There can be

no doubt that Sivakumar (A-2) was connected with

Venkatraman (A-1) as he was an office boy. He was asked

to get a cheque of Rs.3 lakhs encashed from Lakshmi

Vilas Bank, Thirupur Branch. In his going and encashing

the self-cheque, we do not see anything suspicious, as

it was his duty as an office boy to do whatever errands

were asked by his master to him. Further question is as

to whether these 3 lakhs of rupees were for the purpose

of spending in order to fulfill the object of

eliminating Vivekanandan (deceased). As is the common

case, this accused also travelled alongwith others and

Gonsaluez (PW-20) and Cyril Raj (PW-21) spoke about the

Railway reservation charts involving his name.

Similarly, Ram Kumar (PW-23) spoke about his presence in

Jankiram Hotel, so also Ramasubramaniam (PW-26) was set

84

up to prove that he was present in Blue Star Hotel. As

has been said earlier, Ram Kumar (PW-23) or

Ramasubramaniam (PW-26) have not been able to identify

the accused. Anbunathan (PW-29) has tried to say

something against this accused by saying that few days

prior to the incident, he saw Venkatraman (A-1) in his

car alongwith this accused. That claim is too general

to be accepted and even if accepted, it leads to

nothing. We, therefore, reject the evidence of

Anbunathan (PW-29).

54.Similar evidence by Shanmugasundaram (PW-30),

Sabeer (PW-34) and Mohd. Rafi (PW-39) was led in respect

of the telephone calls from the booth of Mohd. Rafi (PW-

39). We have already rejected that piece of evidence.

It was suggested that the handwriting of Sivakumar (A-2)

was proved on the reservation slips. Even in the

opinion of R. Srinivasan (PW-42), his handwriting was

there on Q2 and Q3, which are Exhibits P-24 and P-25.

There can be no dispute about his handwriting on Q3

because he was asked to encash the cheque given to him

by Venkatraman (A-1). In respect of Q1, however, which

is a train reservation form vide Exhibit P-14, even

handwriting expert is not so sure when he says that

85

there is possibility of the same person writing Q1, Q2

and Q3 and S1 to S7. We are really not convinced with

the evidence of handwriting expert alone, as this

accused had not been identified by anybody. In fact, in

comparison to the other accused persons, namely,

Ubaiadulla @ Tamil Selvan (A-4), Yusuf (A-5) and Abdul

Kareem (A-6), his role is greater, inasmuch as besides

the common evidence, it was suggested that an amount of

Rs.1 lakh was seized from him when he was arrested and,

thereafter, he agreed to discover the other cash,

namely, Rs.21,000/- from his house. Mere recovery of

money would be of no consequence unless the prosecution

comes out with a case and give some prima facie evidence

that this cash was a part of the money that he had

received after encashing the cheque. In fact, there is

nothing to suggest that he had not given back the cash.

Shri Ramamoorthy, learned Senior Counsel tried to submit

that this accused should have given some explanation

about this cash. We agree with this contention,

however, that would be only if it was shown that this

accused received this cash from Venkatraman (A-1) and

that too for the purpose of success of conspiracy. The

prosecution has not discharged that burden. Shri

Ramamoorthy also tried to argue that this was a man of

86

confidence of Venkatraman (A-1) being his office boy.

We must, at this juncture, observe that Venkatraman (A-

1) was a mill-owner and was a fabulously rich person.

He had all the resources at his command. It is very

difficult for us to swallow that a powerful person like

Venkatraman (A-1) would take the help of some office boy

in such a sensitive matter as this, where the

elimination of Vivekanandan (deceased) was contemplated.

This is the basic weakness in the prosecution case.

Venkatraman (A-1) would have had number of opportunities

to contact or to secure the services of John Pandian (A-

7) even if it is presumed that it was John Pandian (A-7)

who procured the services of Kumar s/o Vellaichami (A-

9), Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince

(A-11). Nothing has come up that there was any meeting

of mind between Venkatraman (A-1) and Sivakumar (A-2) or

that Sivakumar (A-2) agreed to take part in the

conspiracy. Such agreement is a must for proving his

part in the conspiracy. Further, there is nothing to

suggest that Sivakumar (A-2) was so resourceful, so as

to be able to secure the services of John Pandian (A-7).

He was a mere office boy. There is no doubt that there

was a conspiracy to eliminate Vivekanandan (deceased),

but the mere existence of the conspiracy by itself would

87

not give rise to a further inference that Sivakumar(A-2)

was a conspirator. For that, the prosecution had to

prove something positive, which in this case, the

prosecution has not been able to prove.

55.Inspite of the concurrent judgment of the trial and

the appellate Court in this case, more particularly,

against accused Nos. 2 (Sivakumar), 4(Ubaiadulla), 5

(Yusuf), 6 (Abdul Kareem), and 7 (John Pandian) we had

to consider the evidence afresh as we are not satisfied

with the appreciation of the evidence at the trial and

appellate stage. We find from the judgment that the

Courts below have committed an error in first holding

the existence of conspiracy and proceeding on that basis

and then taking tit-bits in evidence to suggest that

those tit-bits would connect the accused with the

conspiracy as the conspirators. The law on conspiracy

has been stated time and again by this Court. In Major

E.G. Barsay v. State of Bombay reported in AIR 1961 SC

1762, Subba Rao, J. observed:

“The gist of the offence is an agreement to break the

law. The parties to such an agreement will be guilty of

criminal conspiracy, though the illegal act agreed to be

done has not been done. So too, it is not an ingredient

of the offence that all the parties should agree to do a

single illegal act.”

88

In Halsbury’s Laws of England the definition of

conspiracy is as under:

"Conspiracy consists in the agreement of two or more

persons to do an unlawful act, or to do a lawful act by

unlawful means. It is an indictable offence at common

law. The essence of the offence of conspiracy is the

fact of combination by agreement. The agreement may be

express or implied or in part express and in part

implied.. and the offence continues to be committed so

long as the combination persists, that is until the

conspiratorial agreement is terminated by completion of

its performance or by abandonment or frustration or

however it may be".

In American Jurisprudence, 2nd Edn., Vol.16, Page 129,

the following definition of conspiracy is given:

"A conspiracy is said to be an agreement between two or

more persons to accomplish together a criminal or

unlawful act or to achieve by criminal or unlawful means

an act not in itself criminal or unlawful ... The

unlawful agreement and not its accomplishment is the

gist or essence of the crime of conspiracy."

Lastly, in celebrated case of Kehar Singh & ors. v.

State (Delhi Administration) [1988 (3) SCC 609] it was

observed by Jagannatha Shetty, J.:

"The gist of the offence of conspiracy then lies, not in

doing the act, or effecting the purpose for which the

conspiracy is formed, nor in attempting to do them, nor

in inciting others to do them, but in the forming of the

scheme or agreement between the parties. Agreement is

essential. Mere knowledge, or even discussion, of the

plan is not, per se enough" (emphasis ours)

In the celebrated judgment of State v. Nalini & Ors.

[1999 (5) SCC 253] S.S.M. Mohd. Quadri, J. relying upon

89

Van Riper vs. United States (13 F 2d. 961) (2 nd Cir,

1926) observed:

"When men enter into an agreement for an unlawful end,

they become ad hoc agents for one another and have made

a partnership in crime."

Other celebrated decisions on the question of conspiracy

are Yashpal Mittal v. State of Punjab [1977 (4) SCC 540]

as also the State of Himachal Pradesh v. Krishan Lal

Pradhan & Ors. [1987 (2) SCC 17]. It has been held in

Mohd. Khalid v. State of West Bengal [2002 (7) SCC 334]

and in Mohammed Usman Mohd. Hussain Maniyar v. State of

Maharashatra [1981 (2) SCC 443] that the agreement

amongst the conspirators can be inferred by necessary

implication. All these cases together came to be

considered in State of NCT of Delhi v. Navjot Sandhu @

Afsan Guru [2005 (11) SCC 600] where even the celebrated

judgments of V.C. Shukla vs. State [1980 (2) SCC 665],

came to be considered wherein it was observed by Fazal

Ali, J.:

“In most cases it will be difficult to get direct

evidence of the agreement, but a conspiracy can be

inferred even from circumstances giving rise to a

conclusive or irresistible inference of an agreement

between two or more persons to commit an offence."

90

56.It is significant at this stage to note the

observations in V.C. Shukla (cited supra) wherein it was

laid that in order to prove criminal conspiracy, there

must be evidence direct or circumstances to show that

there was an agreement between two or more persons to

commit an offence. It was further held that there must

be a meeting of minds resulting in ultimate decision

taken by the conspirators regarding the commission of

the offence and where the factum of conspiracy is sought

to be inferred even from circumstances giving rise to a

conclusive or irresistible inference of an agreement

between two or more persons to commit an offence.

Relying on that, Pasayat, J. in Esher Singh v. State of

A.P. [2004 (11) SCC 585] observed that the prosecution

has to discharge its onus of proving the case against

the accused beyond reasonable doubt. The circumstances

in a case, when taken together on their face value,

should indicate the meeting of the minds between the

conspirators for the intended object of committing an

illegal act or an act which is not illegal, by illegal

means. A few bits here and a few bits there on which

the prosecution relies cannot be held to be adequate for

connecting the accused with the commission of the crime

of criminal conspiracy. It has to be shown that all

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means adopted and illegal acts done were in furtherance

of the object of conspiracy hatched. The circumstances

relied for the purposes of drawing an inference should

be prior in point of time than the actual commission of

the offence in furtherance of the alleged conspiracy.

57.In Esher Singh’s case (cited supra) this Court held

that the conspiracy was proved between the nine accused.

A systematic role played by each accused was

highlighted. Pasayat, J. in that judgment also

considered the decision in Bhagwan Swarup Lal Bishan Lal

etc.etc vs. State of Maharashtra [AIR 1965 SC 682] and

observed that there is no difference between the mode of

proof of the offence of conspiracy and that of any other

offence. The other decisions in State of Maharashtra v.

Som Nath Thapa [JT 1996 (4) SC 615]), Ajay Aggarwal v.

Union of India & Ors. [1993 (3) SCC 609] as also Mohd.

Usman’s case (cited supra) and Yashpal Mittal (cited

supra) were considered in that decision. The law laid

down in Ajay Agrawal’s case (cited supra) was reiterated

and it was held that it is not necessary that each

conspirator must know all the details of the scheme nor

be a participant at every stage. It is necessary that

they should agree for design or object of the

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conspiracy. Conspiracy is conceived as having three

elements: (1) agreement; (2) between two or more persons

by whom the agreement is effected; and (3) a criminal

object, which may be either the ultimate aim of the

agreement, or may constitute the means, or one of the

means by which that aim is to be accomplished. These

decisions were thereafter considered in Navjot Sandhu’s

case (cited supra). In K.R. Purushothaman v. State of

Kerala [2005 (12) SCC 631] a specific observation was

made to the effect that all conspirators need not take

active part in the commission of each and every

conspiratorial act but, mere knowledge, even discussion,

of the plan would not constitute conspiracy. It was

further observed that each one of the circumstances

should be proved beyond reasonable doubt and such

circumstances proved must form a chain of events from

which the only irresistible conclusion is about the

guilt of the accused which can be safely drawn and no

other hypothesis of the guilt is possible. We

respectfully agree with the law laid down in Navjot

Sandhu’s case and K.R. Purushothaman’s case .

58.However, when we test the facts of this case, vis-

à-vis the above parameters it has to be said that what

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the prosecution has proved are mere tit-bits of some

circumstances. It is not possible to hold that the acts

done by Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5)

Abdul Kareem (A-6) and John Pandian (A-7) along with

deceased Venkatraman (A-1) and the subsequent act on the

part of Kumar (A-9), Pavunraj (A-10) and Prince Kumar

(A-11) formed a chain of circumstances which

irresistibly prove the offence of conspiracy against

these accused persons. What was actually done by

Sivakumar (A-2), Subramaniam (A-3), Ubaiadulla (A-4),

Yusuf (A-5) and Abdul Kareem (A-6) was that they

travelled together between Coimbatore and Madurai they

possibly stayed in Jankiram Hotel in their first stay.

Then there is a missing link as to how they proceeded to

Tirunelveli and further to Chennai. The prosecution

alleged that they then contacted John Pandian (A-7) in

MLA’s hostel in Chennai and met him. The prosecution

has drawn complete blank. They have not been able to

prove that John Pandian actually stayed in MLA’s hostel.

A mere mention of the name called ‘John Pandian’ in the

records of the MLA’s hostel would be of no consequence

unless this John Pandian was identified by somebody at

the MLA’s hostel. This undoubtedly was possible but

that was not done by the investigation agency.

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Therefore, a very important link that Sivakumar (A-2),

Ubaiadulla (A-4), Yusuf (A-5) and Abdul Kareem (A-6)

actually met John Pandian (A-7) in the MLA’s hostel is

not proved. Once this link is snapped, the whole

prosecution theory about the conspiracy must fall down.

Even if it is presumed that these four persons were sent

by Venkatraman (A-1) to contact John Pandian (A-7) there

is absolutely no evidence that Venkatraman (A-1) in any

manner knew about John Pandian or he wanted to contact

him and, therefore, he sent Sivakumar (A-2) who took the

help of Ubaiadulla (A-4), Yusuf (A-5) and Abdul Kareem

(A-6) to contact John Pandian.

59.Similar is the story regarding the stay of these

accused persons at Blue Star Hotel. The staff in

Jankiram Hotel and the Blue Star Hotel could have been

asked to identify these four persons that they at least

stayed on relevant dates. That was also not done. Shri

Ramamoorthy urged very earnestly that there was no

explanation given by these accused persons as to why

they travelled together from Coimbatore to Madurai and

from Chennai to Coimbatore. Now, there is no question

of these explanations because in the first place it was

not proved at all that these persons actually travelled.

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Even if we presume that they did travel together, that

by itself reaches the prosecution nowhere. They may have

hundred other purposes for travelling. A mere non-

explanation as to why the accused persons made those

travels by itself will not create a piece of evidence

against these accused persons though that may be

relevant in consideration of their participation.

Further, even if it is presumed that from these accused

persons money was discovered there is nothing on record

that the money was given by Venkatraman (A-1) to accused

No.2, Sivakumar and through him to all the other accused

persons. In fact, the prosecution was extremely

confused as to how much money was said to have been

agreed to be paid for the murder of Vivekanadan and as

to how much money was distributed. All these things

completely shatter the case of conspiracy at least in so

far as the Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-

5) and Abdul Kareem (A-6) and John Pandian (A-7) are

concerned.

60.We have already commented on the telephonic calls

allegedly made. There also the prosecution has drawn

complete blank. Under the circumstances, it is very

difficult to hold that Sivakumar (A-2), Ubaiadulla (A-

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4), Yusuf (A-5) and Abdul Kareem (A-6) and John Pandian

(A-7) were the conspirators. They have to be given the

benefit of about for that purpose. It is undoubtedly

true that Sivakumar (A-2) who was a mere office boy was

shown with the amount of Rs.1 lakh carrying with him.

Now, we fail to follow as to why Sivakumar (A-2) keep on

parading himself with Rs.2 lakh and how is it that on

that occasion was caught along with Rs. 1 lakh. That is

apart from the fact that Sivakumar (A-2) has tried to

give an explanation that it was his father’s money who

had received the same as his retiral benefits. We are

not much on the explanation, as in our opinion, the mere

possession of a lakh of rupees on his person would not

take the theory of conspiracy any further. There is

another difficulty in the way of prosecution in this

case. That is the acquittal ordered by the Division

Bench of Ganesan (A-8) who was the taxi driver from

whose taxi the photograph of Vivekanandan along with

case of Rs.23,000/- was seized. Unfortunately for the

prosecution, the State has not chosen to challenge that

acquittal with the result that a very important link in

the conspiracy is snapped.

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61.To summarize, therefore, we hold Kumar (A-9) and

Pavunraj (A-10) guilty and further confirm the judgment

of the appellate Court convicting them. We however,

allow the appeals filed by Sivakumar (A-2), Ubaiadulla

(A-4), Yusuf (A-5) and Abdul Kareem (A-6) and John

Pandian (A-7) giving them the benefit of doubt and

acquit them. They shall be set to liberty forthwith

unless required in any other case. Since Venkatraman (A-

1) and Prince Kumar (A-11) are reported to be dead, the

appeals by them are declared to be infructuous. Before

parting, we must appreciate the efforts by the State

counsel Shri Ramamoorthy as also the defence counsel who

have painstakingly taken us through the voluminous

record of this case and helped us in appreciating the

evidence.

……………………………..J.

[V.S. Sirpurkar]

……………………………..J.

[Cyriac Joseph]

December 3, 2010;

New Delhi.

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