JOHN PANDIAN v. STATE REP. BY INSPECTOR OF POLICE, T. NADU

Citation: [2010] 15 S.C.R. 1012

Court: Supreme Court of India

Bench: V.S. SIRPURKAR, CYRIAC JOSEPH

Case summary

JOHN PANDIAN v. STATE REP. BY INSPECTOR OF POLICE, T. NADU.pdf

Judgment text

(2010] 15 (ADDL. ) S. C. R 1012 JOHN PANDIAN v. STATE REP. BY INSPECTOR OF POLICE;, T. NADU (Criminal Appeal No. 452 of 2007) DECEMBER 3, 2010 [V. S. SIRPURKAR AND CYRIAC JOSEPH, JJ. ] Penal Code, 1860: s. 302 rlw s. 34, s. 302 rlw s. 109, ss. 34 and 120-8 - Hom.

icidal death - A/legations of criminal conspiracy - Prosecution case that A-1, owing to his failure in marrying a girl he loved, hatched a conspiracy to ki/J her husband, for which A-9, 10 and A-11 were hired as assassins -A-10 and A-11 allegedly waylaid the deceased pursuant to which A-9 severely 0 assaulted him with a sharp edged weapon - Eleven accused - Two accused, A-3 and A-8, acquitted- Conviction ofthe other accused - Challenge to - Meanwhile, A-1 committed suicide - Held:' Conviction of A-9, 10 and 11 affirmed in view of the consistent direct evidence of the eye-witnesses which was corroborated by the evidence of Test Identification Parade and circumstantial evidence - However, it is not possible to hold that the acts done by A-2, A-4, A-5, A-6 and A-7 along with A- 1 and the subsequent act on the part of A-9, A-10 and A-11 formed a chain of circumstances which irresistibly proved the offence of conspiracy against A-2, 4, 5, 6 and 7- Prosecution was extremely confused as to how much money was agreed to be paid for the murder and as to how much money was distlibuted - All these things completely shatter the case of conspiracy at least in so far as A-2, 4, 5, 6 and 7 are concerned - They have to be given the benefit of doubt for that purpose and are acquitted.

s. 302 rlw s. 34 - Murder-A/legation that A-10 and A-11 had stopped the deceased whereafter A-9 severely assaulted JOHN PANDIAN v. STATE REP. BY INSPECTOR OF1013 POLICE, T. NADU the deceased with a sharp weapon - Three eye-witnesses - Conviction·of A-9, A-10 and A-11 - Justification - Held: Justified - All the three witnesses gave graphic description of the incident, which was in consonance with each other - They a/so identified the accused persons in Test Identification Parade, which had the effect of corroborating the evidence of the eye-witnesses - Further corroboration from circumstantial evidence such as discovery of the weapon of offence at the instance of A-9 and recovery of the photograph of deceased from the taxi in which A-9, A-10 and A-11 travelled prior to the incident - Evidence against A-9, A-10 and A-11 was sufficient - Trial and the appellate Courts rightly convicted them. s.

1208 - Conspiracy - Proof of - Held: The evidence of conspiracy is very hard to be found and the prosecution would always have a great difficulty in proving the conspiracy and, therefore, the conspiracy has to be inferred - Every such circumstance, which is relied upon by the prosecution for establishing conspiracy, must be proved to have nexus with that conspiracy - Evidence - Evidence of conspiracy. s. 120-B and s. 302 rlw s. 109 - Murder - Criminal conspiracy - Eleven accused: ' Conviction of A-7, a political leader, as a co-conspirator- Justification - Held: Not justified - The evidence against A-7 was insufficient - No effort was made by the prosecution to identify A-7 though he could have been easily identified -A-7 granted benefit of doubt.

Conviction of A-5 - Justification of - Held: Not justified - Held: There was hardly any evidence against A-5 which can brand him as a conspirator - He was never put"up for identification -A-5 had no enmity with the deceased - Merely because he travelled along with some of the other accused not enough to prove any part of the conspiracy- The travels could have been for various other reasons - He, therefore deserves acquittal. i \ ' Conviction of A-6 - Justification - Held: Not justified - No presumption that merely because A-6 had some things in his possession, which he failed to explain, therefore, all this must have come only on account of the money that he had allegedly received as a member of the conspiracy - This evidence not enough to hold that he was a member of the conspiracy - A-6 therefore entitled to benefit of doubt.

Conviction of A-4 - Justification - Held: Not justified - In the absence of any convincing evidence, merely because A- 4 travelled together with other accused and stayed in two Hotels, it cannot be said that it was in order to perpetrate a conspiracy - Nothing brought on record suggesting that the money recovered from him was paid to him as part of the conspiracy - A-4, therefore, given the benefit of doubt.

A-2, office boy of the main accused A-1, found carrying large sum of money- Conviction of A-2 - Justification - Held: Not justified - A-2 had not been identified by anybody- 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 from A-1 and that too for the purpose of success of conspiracy - The prosecution did not discharge that burden - It is unlikely that a rich and powerful person like A-1 would take the help of some office boy in such a sensitive matter where murder of a person was contemplated - This is the basic . weakness in the prosecution case - Nothing to show that there was any meeting of mind between A-1 and A-2 or that A-2 agreed to take part in the conspiracy - No inference can be drawn that A-2 was a conspirator.

Constitution of India, 1950 - Article 136 - Criminal trial - Appreciation of evidence by trial court and appellate court - Re-appreciation of evidence at SLP stage - Permissibility of - Held: Normally, once the evidence is accepted by the trial and the appellate Court, the Supreme Court does not go into the exercise of re-appreciation unless it is shown that the POLICE, T. NAOU appreciation of evidence by trial and appellate Court is perverse, not at all acceptable to trained judicial mind or so faulty as to require the inference of the Supreme 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. Evidence - Evidence of Identification Parade - Held: Need not be·viewed as a weak type of evidence.

According to the prosecution, A-1, owing to his failure in marrying PW-3, hatched a conspiracy along with other accused to eliminate PW3's husband; that A-2, an employee of A-1, helped A-1 in establishing contacts with A-4, A-5 and A-6; that thereafter A-2, A-4, A-5 and A-6 established contact with A-7 (a political leader) who in turn hired A-9, A-10 and A-11 as assassins; and that A-9, A-10 0 and A-11 hired a car (driven by A-8) and assaulted PW3's · husband mercilessly with veechu aruval (a weapon with handle and with bent sharp blade) and murdered him on the spot. The incident was allegedly seen by PW-14, PW- 15 and PW-16. The victim suffered 9 cut injuries on vulnerable parts of his body like his shoulder, neck, right · cheek, occjpital region etc. The murder took place on a busy road of Coimbatore in broad daylight. The trial Court convicted A-9, A-10 and A-11 under s. 302, IPC read with s. 34, IPC.

A-1, A-2, A-4, A-5, A-6, A-7, A-8, A-9, A-10 and A-11 were convicted under Section 1208, IPC. A-1, A-2, A-4, A-5, A-6, A-7 and A-8 were also convicted for offence under Section 302, IPC read with Section 109, IPC. The trial Court acquitted A-3. No appeal against his acquittal was filed by the State. The convicted accused filed appeals before the High Court. The appeal filed by A- ! 8 was allo~ed and he was acquitted. The appeals of the · remaining convicts were dismissed. During the pendency of this app~al, A-1 committed suicide. The instant appeals were filed by A-2, A-4, A-5, A-6, A-7, A-9, A-10 and A-11. Disposing of the appeals, the Court HELD:1. Peculiarly, in this case the accusedappellants can be divided into two groups. The first group is A-9, A-10 and A-11 who were involved by the direct ocular testimony and were also part of the conspiracy to 8 murder PW3's husband.

The second group is that of the accused persons being A-2, A-4, A-5 and A-6 and 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. This Court, therefore, proposes to consider the matter group-wise. [Paras 19 and 20) [1038-C-F] A-9, A-10 and A-11 2. 1. Normally, once the evidence is accepted by the, 0 trial and the appellate Court, the Supreme 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 acceptable to trained judicial mind or so faulty as to require the inference of the Supreme 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. [Para 20) [1038-G-H; 1039-A-B] 2. 2.

In the present case, the evidence against the three accused A-9, A-10 and A-11 basically consists of the eye- _ witness account by PW-14, PW-15 and PW-16. All the three witnesses gave graphic description of the incident. All of them have asserted that A-10 and A-11 stopped the deceased and A-9 started severely assaulting the deceased. Insofar as role played by these accused persons is concerned, the evidence of all the three eyewitnesses is in consonance with each other and there does not appear to be any reason to discard their evidence. I JOHN PANDIAN v. STATE REP. BY INSPECTOR OF1017 POLICE, T. . NADU The trial and the appellate Courts are right in accepting A. their evidence as truthful. [Paras 21, 27] [1039-C-D; 1045- E-F] 2. 3. All the three eye-witnesses have been corroborated by the fact that in the Test Identification 8 Parade, they identified the accused persons.

Thetrial and the appellate Courts rightly accepted the evidence of Test Identification Parade, which has the effect of corroborating the evidence of the three eye-witnesses. The evidence of Identification Parade need not be viewed as a weak type of evidence. The said three eye-witnesses had the full opportunity to see the accused persons and correctly identified the accused persons in the Test Identification Parades. As regards the contention that the accused persons were shown to the witnesses earlier and irresponsible suggestions were 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. In fact, the eye-witnesses' account supported with by the evidence of Test Identification Parades is more than. enough to seal the fate of A-9, A-10 and A"11. [Paras 28, 29] (1045-C; 1046-A-B-G-H; 1047-A] 2. 4.

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 aruva/ effected at the instance of A-9 from Hindu cremation ground. The prosecution has brought on record that the taxi No. TAC 5667 which was being driven by A-8 had passed through Ooty. The prosecution examined PW-44 and 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 PW-44 to prove that the accused persons stayed in the night of 16-17/8/ 93 at Hotel Arthi Lodge, Ooty.

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 there is no reason to take a different view. The other circumstance against A-9 is the evidence of PW-50 who was a Scientific Officer. He examined M. 0. 20 which was a colour photograph of deceased which was found from the taxi in its search. He matched M. 0. 20 with M. 0. 17 which was a colour photo of 0 PW3. 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.

The photograph of PW3 was found from the possession of A- 1 while the photograph of deceased was found from the taxi in which A-9, A-10 and A-11 travelled. 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. [Paras 30, 34 and 35] [1047-C; 1049-H; 1050-A-C; G-H; 1051-A-D; 1052-C] 2. 5. There is sufficient evidence against A-9, A-10 and A-11 and the trial and the appellate Courts have correctly convicted them for the offence under Section 302 in case of A-9 and others with the aid of Section 34 IPC. [Para 36) [1053-E-F] JGHN PANDIAN. v. STATE REP. BY INSPECTOR OF 1019 POLICE, T. NADU State of Uttar Pradesh v. Boota Singh & Ors. 1979 (1) SCC 31 - relied on. State ofHimacha/ Pradesh v. Jeet Singh 1999 (4) SCC 370 - referred to. A-2, A-4, A-5, A-6, A-7 3. 1.

lnspite of the concurrent judgment of the trial and the appellate Court in this case against A-2, 4·, 5, 6, and 7, this Court had to consider the evidence afresh as it is not satisfied with the appreciation of the evidence at the trial and appellate stage. The Courts below 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. [Para 55] [1076-D-E] 3. 2. The evidence of conspiracy is very hard to be found and the prosecution would always have a great difficulty in proving the conspiracy and, therefore, the conspiracy has to be inferred. There can be no doubt that there was a. conspiracy to eliminate PW3's husband from the scene and from this world. However, again the question remains as to whether there is sufficient evidence to connect A-7 with the conspiracy itself.

One must realize that if no connection is established with A-7 excepting for a few phone calls from Ukkadam to his house and the fact of A-2, A-4, A-5, A-6 travelling from Coimbatore to Madurai and from Chennai to Coimbatore it does not connect A-7 successfully. Further no effort has been made by the prosecution to identify 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 A-9, A-10 and 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 A-7 to be a conspirator it will be extremely difficult to hold him so. Therefore, he is granted benefit of doubt. [Para 47] [1066-H; 1067-A-E] 3. 3. There is hardly any evidence against A-5 which can brand him as a conspirator.

This accused, like the 8 other friends of him like A-2, A-4 and 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 from the fact that no attempt was made to identify him even by the railway staff of the train in which he travelled. All that he has said is that A-2, A-5 and 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. 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 socalled conspiracy for eliminating PW3's husband. He had no enmity with the deceased. 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. This Court does 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. This Court is not at all impressed by the prosecution case. He, therefore, deserves acquittal. [Para 48] [1067-F-H; 1068-A-H; 1069-A-B] 3. 4. As regards the case of A-6, again, his participation in the conspiracy is tried to be proved from the railway travels and also by witnesses PW-20, and PW-21. Merely because there are some discoveries they do not in any POLICE, T. NADU manner connect the accused and there is no presumption A, "' .

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 member of the conspiracy from A-2. 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. [Para 49] (1069-C-D; 1070-E-G] 3. 5. 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 any convincing evidence, merely because A-4 travelled together with others and he stayed in those two Hotels, it cannot be said that it was in order to perpetrate a conspiracy.

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 is not sufficient. He is said to have discovered a Titan watch vide M. O. 11 and cash vide M. O. 12. However, it is not seen 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 A-1 via A-2. There is no connection established in between him and A-7 or for that matter, A-9, A-10 and 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. He is given benefit of doubt. [Para 52] [1073- C-H; 1074-A] I 3.

6. There can be no doubt that A-2 was connected with 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. However, in his going and encashing the self-cheque, this Court does not see anything suspicious, as it was his duty as an office boy to do whatever errands were asked by his master to him. This accused had not been identified by anybody. 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. Though this accused should have given some explanation about this cash, however, that would be only if it was shown that this accused received this cash from 0 A-1 and that too for the purpose of success of conspiracy. The prosecution has not discharged that burden.

A-1 was mill-owner and was a fabulously rich person. He had all the resources at his command. It is very difficult to swallow that a powerful person like A-1 would take the help of some office boy in such a sensitive matter as his, where the elimination of deceased was contemplated. This is the basic weakness in the prosecution case. A-1 would have had number of opportunities to contact or to secure the services of A-7 even if it is presumed that it was A-7 who procured the services of A-9, A-10 and A-11. Nothing has come up that there was any meeting of mind between A-1 and A-2 or that 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 A-2 was so resourceful, so as to be able to secure the services of A-7. He was a mere office boy.

There is no doubt that there was a conspiracy to eliminate the deceased, but the mere existence of the conspiracy by itself would not give rise to a further inference that A-2 was a conspirator. For POLICE, T. NADU that, the prosecution had to prove something positive, which in this case, the prosecution has not been able to prove. [Paras 53, 54] [1074-B-C; 1075-C-H; 1076-A-C] 3. 7. In the instant case, it is not possible to hold that the acts done by A-2, A-4, A-5, A-6 and A-7 along with deceased A-1 and the subsequent act on the part of A-9, A-10 and A-11 formed a chain of circumstances which irresistibly prove the offence of conspiracy against these accused persons. What was actually done by A-2, A-3, A- 4, A-5 and 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 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 A-7 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 A-7 as identified by somebody at the MLA's hostel. This undoubtedly was possible but that was not done by the · investigation agency. Therefore, a very important link that A-2, A-4, A-5 and A-6 actually met 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 A-1 to contact A-7 there is absolutely no evidence that A-1 in any manner knew about A-7 or he wanted to contact him and, therefore, he sent A-2 who took the help of A-4, A-5 and A-6 to contact A-7. [Para 58] [1080-C-H] 3. 8.

Similar is the story regarding the stay of these accused persons at Blue Star Hotel. The staff in Jankiram H~tel 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. As regards the contention 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, there is no question of these explanations because in the first place it was not proved at all that these persons actually travelled. Even if it is presumed that they did travel 8 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 A-1 to A-2 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 and as to how much money was distributed. All these things completely shatter the case of conspiracy at least in so far as the A-2, A-4, A-5 and A-6 and A-7 are concerned. [Para 59] [1081- B-F] 3. 9. In regard to the alleged telephone calls, the prosecution has drawn complete blank. Under the circumstances, it is very difficult to hold that A-2, A-4, A-5 and A-6 and A-7 were the conspirators. They have to be given the benefit of about for that purpose. It is undoubtedly true that A-2 who was a mere office boy was shown with the amount of Rs. 1 lakh carrying with him. Now, one fails to follow as to why 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 A-2 has tried to give an explanation that it was his father's money who had received the same as his retiral benefits. The mere possession of a lakh of rupees on his person would not take the theory of conspiracy any POLICE, T. NADU further. There is another difficulty in the way of prosecution in this case. That is the acquittal ordered by the High Court of A-8 who was the taxi driver from whose taxi the photograph of the deceased along with case of Rs. 23,000/- was seized. The State has not chosen to challenge that acquittal with the result that a very important link in the conspiracy is snapped. [Para 60] [1081-G-H; 1082-A-D] State of NCT of Delhi v. Navjot Sandhu @ Afsan Guru 2005 (11) SCC 600; K. R. Purushothaman v. State of Kera/a c\ 2005 (12) sec 631 - affirmed. Major E. G. Barsay v. State of Bombay AIR 1961 SC 1162; . , Kehar Singh &ors. v.

State (Delhi Administration) 1988 (3) SCC 609; State v. Nalini & Ors. 1999 (5) SCC 253; Yashpal Mittal v. State of Punjab [1977 (4) SCC 540; State of Himachal Pradesh v. Krishan Lal Pradhan & Ors. 1987 (2) SCC 17; Mohd. Khalid v. S. tate of West Bengal 2002 (7) SCC 334; Mohammed· Usman Mohd. Hussain Maniyar v. State of Maharashatra 1981 (2) SCC 443; V. C. Shukla v. State 1980 (2) SCC 665; Esher Singh v. S,tate of A. P. , [2004 (11) SCC 585). ; Van Riper v. United States (13 F 2d. 961) (2 nd Cir, 1926); BhagWan Swarup Lal Bishan Lal etc. etc v. State of . . . . . . ~ Maharashtra AIR 1965_ SC 682; State of Maharashtra v. Som Nath Thapa JT 1996 (4) SC 615; Ajay Aggarwal v. Union of India & Ors. 1993 (3) SCC 609 - referred to. American Jurisprudence; 2nd Edn. Vol. 16, Page 129; Halsbury's Laws of £rig/and - referred to. 4. In conclu~ion, A-9 'and A-10 are ·h~ld guilty and the judgment of the appellate Court convicting them is confi~med.

However, the appeals filed by A-2, A-4, A-5, A- 6 and A-7 are ailowed giving them the benefit of doubt and they are acquitted. Since A-1 and A-11 are reported to be dead, the appeals by them are declared to be infructuous. [Para 61] [1082-E-F] Case Law Reference: 1979 (1) sec 31 relied on Para 28 1999 (4) sec 310 referred to Para 32 AIR 1961 SC 1762 referred to Para 55 1988 (3) sec 609 referred to Para 55 1999 (5)·s•;c 253 referred to Para 5-S (13 F 2d. 961) referred to Para 55 1977 (4) sec 540 referred to Para 55, 57 1987 (2) sec 11 referred to Para 55 2002 (7) sec 334 referred to Para 55 1981 (2) sec 443 referred to Para 55, 57 2005 (11) sec 600 affirmed Para 55 19so (2) sec 665 referred to Para 55, 56 (2004) 11 sec 585 referred to Para 56 AIR 1965 SC 682 referred to Para 57 JT 1996 (4) SC 615 referred to Para 57 1993 (3) sec 609 referred to Para 57 2005 (12) sec 631 affirmed Para 57 CRIMINAL APPELLATE JURISDICTION : From the Judgment & Order dated 04. 04.

2006 of the High Court of Judicature at Madras in Criminal Appeal No. 121 of 2003. WITH Crl. A. Nos. 453, 544, 503 of2007, 272 of 2008 & 2285 of2010. POLICE, T. NADU ShakharNaphade, K. Ramamoorthy, V. Krishnamurhy, P. N. Ramalingam, Priscilla Pandian (for M. Vijaya Bhaskar) E. M. S. Aram, Senthil Jagadeesan, V. Ramasubramanian, V. Mohana, Ravi Kumar Tomar, Sajith P. Warrier, B. M. Jha, Vikash Kumar, Sriram J. Thalapathy, S. Thanajayan, Promila Saktni Murugan, T. Harish Kumar for the appearing parties. B. The Judgment of the Court was delivered by V. 5. SIRPURKAR, J. 1. This judgment will dispose of Criminal Appeal Nos. 452 of 2007, 453 of 2007, 455 of 2007 and 503of2007, 272of2008 and SLP (Crl. ) 1217 of2007. 2. Leave granted in SLP (Crl) 1217 of 2007. 3.

All these appeals are against the conviction of accused personswho were convicted by the trial Court and the appellate 0 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 forthe 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 @ BaIan 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 (accused No. 9), Pavunraj @ Pavun, s/o Poothiyamuthu (accused No. 10) and Prince Kumar (accused No. 11) were convicted for offence under Section 1208, 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 0 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 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 (\ot end and he remained a close friend of Vivekanandan and Sulqitha 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 e'yen provided them with a telephone line.

He also helped the couple in establishing their house by helping to buy drapery for thei_r riewly set up abode. It was also tried to be shown by the prosecution that after the marriage of deceased Vivekanandan with Sunitha there was c. 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 ofVenkatraman 0 (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 eliminat"e the deceased Viv~nandan 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 caiied Tamil Selvan. The prosecution 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 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 ~iven to Ubaiadulla (A-4) and Yusuf (A-5) and Abdul 0 Kare~m (A-6) and, thereafter, on receiving the money, Sivak'umar (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. ltwas 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 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 POLICE, T. NAOU [V. S. SIRPURKAR, J. ] 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 8-2 police station received an information that a person was lying near Richy Rich Restaurant. One Valliappan c.

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 chappa/ 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 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 liis 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 tliat 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 0 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 colour photograph of Sunitha which was a counterpart of 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, atthat time was parked along with Dharapuram Raad 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. The auto driver Paraman@ Paramasivam (PW-15) who was the eye witness was also found and his statement was ·recorded. The documents at Vijayalai<mi Mills of which Venkatraman (A-1) was the owner were seized. The records at MLA's hostel in Chennai were also seized. Itwas 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 · 0 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 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 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, Iler contention was that there 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 dagadeesan, 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 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 that this accused eve~ went to Chennai. He also suggested that the discovery was a farce. 14.

Shri Ravi Kumar Tamar, 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 Pandiar. 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 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 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 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 (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 groupwise. 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 acceptable to trained judicial mind or so faulty as to require the inference of this Court or that the trial and appellate Court have POLICE, T. NADU f\/. S. SIRPURKAR, J. ] 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. 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 (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. 0. -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 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 ReportAnnexures 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 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 0 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 trjal 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 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 consid1,1ed 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 stand and some shops and has held that the 0 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.

Mahana, 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 wl10 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 used to come on the spot. Selvaraj (PW-14) had specifically stated POLICE, T NADU [VS. SIRPURKAR, J. ] that he was doing his real estate business and that he alongwith his two other friends, namely, Shanmugasundaram and Nagaraj, used to assemble at 9'0 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, the~efore, 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 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 eyewitnesses 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, 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 0 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-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. Mahana 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, 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 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 any infirmity. 29. Ms. Mohana, learned Counsel appearing on behalf of the appell~nt 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. Mahana 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. Mahana urged that the accused persons were shown to the witnesses earlier and irresponsible suggestions were 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 bo~h the Identification Parades and withstood his cross-examination very well. In fact, the eyewitnesses' 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 ·o bus stop near Udumalpet Road with cine Thirugnanasambadam, a police van came and stopped.

An Inspector and some police men and other persons alighted from that van. The said person was the 9th accused, Kumar. The Inspector told Anand (PW-41) that the 9th accused, Kumar was going to take out and produce a thing for which he was required as witness. He further suggested that the 9th 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 thisversion 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 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. Itwas inspector himself who recorded the statement on 29. 10. 93. We find nothing suspicious in the evidence of this witness or even in the evidence of PW-41, Anand. Anand has also stood firm during his crossexamination. 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 i be no question of rejecting the discovery only on this count. It cannot be forgotten in thi~ case that the common witness PW- 56 who was present both at the time of confessional statement andthe 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. BI Acc<l[ding to him those two witnesses left on 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 s_tatement 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 0 cannot be disputed nor can it be disputed that Kumar (A-9) ultimately discovered the veechu aruva/ from the cremation ground. 33. It was then urged by the learned counsel that this was a ope~ place and anybody could have planted veechu aruval. That appears to be a very remote possibility. Nobody can simply produce a veechu aruva/ 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 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. The"re is the evidence led by Sent11il (PW-44J 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 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 0 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. 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 Offi,cer in the Physics Department. He examined M. 0.

20 which was a colour photograph of deceased Vivekanandan which was found from the taxi in''its search. He matched M. 0. 20 with M. 0. 17 which was a colour p,hoto of-S1. mitha, 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 th. e photograph was matching and lie, 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 ofdeceased 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 w