Supreme Court of India
JOHN PANDIANversusSTATE REP. BY INSPECTOR OF POLICE, T. NADU
- Citation
- 2010 INSC 846
- Decided
- 3 December 2010
- Disposal
- Disposed off
- Bench
- V S SIRPURKAR
Holding
The Supreme Court affirmed the convictions of the actual murderers (A‑9 and A‑10) and acquitted the alleged conspirators (A‑2, A‑4, A‑5, A‑6, A‑7) for lack of proof of a conspiratorial agreement.
Summary
The case concerns the murder of Vivekanandan in Coimbatore, allegedly orchestrated by Venkatraman (A‑1) out of a love rivalry and carried out by hired assassins Kumar (A‑9), Pavunraj (A‑10) and Prince Kumar (A‑11). The trial court convicted all accused under sections 302, 34, 109 and 120B IPC; the High Court affirmed most convictions except for the taxi driver (A‑8). On appeal, the Supreme Court upheld the convictions of the actual assailants (A‑9 and A‑10) based on consistent eye‑witness testimony and corroborative identification parades, but acquitted the alleged conspirators (A‑2, A‑4, A‑5, A‑6, A‑7) due to insufficient proof of a conspiratorial agreement. The Court also clarified that re‑appreciation of evidence at the SLP stage is permissible only when the lower courts' findings are perverse or based on inadmissible material. The appeals of the deceased and dead accused were declared infructuous.
Issues considered
- The adequacy of eye‑witness and identification parade evidence to sustain convictions under s.302 read with s.34 IPC.
- Whether the prosecution proved a conspiratorial agreement among A‑2, A‑4, A‑5, A‑6 and A‑7 under s.120B IPC.
- Whether the Supreme Court may re‑appreciate evidence at the SLP stage.
- The evidentiary value of discovery and circumstantial evidence in establishing conspiracy.
Legislation cited
- Constitution of Indias. 136
- Indian Penal Code, 1860s. 109, s. 1208, s. 120B, s. 302, s. 34
Subjects
murdercriminal conspiracyidentification paradecircumstantial evidencebenefit of doubtappellate reviews.302 IPCs.34 IPCs.120B IPC
Judgment
(2010] 15 (ADDL.) S.C.R 1012
A JOHN PANDIAN
v.
STATE REP. BY INSPECTOR OF POLICE;, T. NADU
(Criminal Appeal No. 452 of 2007)
DECEMBER 3, 2010
B
[V.S. SIRPURKAR AND CYRIAC JOSEPH, JJ.]
Penal Code, 1860:
c 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 of the 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
E 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
F 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
G - 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
H 1012
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF1013
POLICE, T. NADU
the deceased with a sharp weapon - Three eye-witnesses - A
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 B
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 c
- 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 D
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 E
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
F
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 G
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 \ ' H
1014 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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,
C 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.
D 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
E 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
F 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.
G 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
H the exercise of re-appreciation unless it is shown that the
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1015
POLICE, T. NAOU
appreciation of evidence by trial and appellate Court is A
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. B
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 C
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 E
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, F
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 G
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. H
1016 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Disposing of the appeals, the Court
HELD:1. Peculiarly, in this case the accused-
appellants 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,
C proposes to consider the matter group-wise. [Paras 19 and
20) [1038-C-F]
A-9, A-10 and A-11
0 2.1. 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 appreciation of evidence by trial and appellate
Court is perverse, not at all acceptable to trained judicial
E 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;
F 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
G 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 eye-
witnesses is in consonance with each other and there
H 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 C
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 D
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 E
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 F
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 G
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
H
1018 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A 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
B 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
c 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
E 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
F 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]
G
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)
H [1053-E-F]
JGHN PAN DIAN. v. STATE REP. BY INSPECTOR OF 1019
POLICE, T. NADU
State of Uttar Pradesh v. Boota Singh & Ors. 1979 (1) SCC A
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 B
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 c
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]
D
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 E
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 F
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 G
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 H
1020 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A 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
C 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
D 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
E is nothing to suggest that he had any nexus with the so-
called 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
F 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
G 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
H
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1021
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 a
member of the conspiracy from A-2. This evidence would B
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] c
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 D
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. E
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 F
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 G
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] HI
1022 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A 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
B 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
c 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
a 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
E 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
F 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
G 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
H
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1023
POLICE, T. NADU
that, the prosecution had to prove something positive, A
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
B
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 C
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 D
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 E·
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 F
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 G
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
H
1024 SUPREME COURT REPORTS (2010] 15 (ADDl.) S.C.R.
A 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
8 actually travelled. Even if it is presumed 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
C 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
D 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-
E 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
F 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
G 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
H person would not take the theory of conspiracy any
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1025
POLICE, T. NADU
further. There is another difficulty in the way of A
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 B
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 D
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 E
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. F
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 G
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] H
1026 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B
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
c
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
D 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
E (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
F
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.
G
WITH
Crl. A. Nos. 453, 544, 503 of2007, 272 of 2008 & 2285 of2010.
H
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1027
POLICE, T. NADU
ShakharNaphade, K. Ramamoorthy, V. Krishnamurhy, P.N. A
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. C
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 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 E
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 @
Ba Ian s/o Amal raj for the offence under Sections 302, IPC read
with Section 34, IPC. While accused No.9, Kumar s/o F
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 G
@ 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),
H
1028 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A 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),
B 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
c 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
E 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
F 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.
G 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
H that was not to be. The prosecution painted a picture that even
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1029
POLICE, T. NADU [V.S. SIRPURKAR, J.]
/
after their marriage the fatal attraction which Venkatraman A
(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 B
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 Kera la 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
E
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 F
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 G
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.
H
1030 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
c 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
E (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
F 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
G 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-
H 9), Pavunraj (A-10) and Prince Kumar (A-11) hired a car bearing
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1031
POLICE, T. NAOU [V.S. SIRPURKAR, J.]
registration No. TAC 5667 of which Ganesan (A-8) was the A
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 B
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 D
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 E
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 F
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 G
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
H
1032 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A 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
B 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
c 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
a colour photograph of Sunitha which was a counterpart of
E 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
F 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
G 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
H
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1033
POLICE, T. NADU [V.S. SIRPURKAR, J.]
officer seized the STD calls register roll confirming that number A
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 B
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. It was then found that c
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 E
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 F
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 G
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
H
1034 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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.
C 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
D 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.
E 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
F 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
G 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
H was also not satisfactory and the whole exercise was a farce.
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1035
POLICE, T. NADU [V.S. SIRPURKAR, J.]
She further urged that there was no evidence much less the direct A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
1036 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1037
POLICE, T. NADU [V.S. SIRPURKAR, J.]
and there was no cross-examination worth the name of the A
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 B
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 C
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 D
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 E
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 F
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 G
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 H
1038 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
C 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-
D 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,
E 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
F 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
G 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
H inference of this Court or that the trial and appellate Court have
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1039
POLICE, T. NADU f\/.S. SIRPURKAR, J.]
relied on some inadmissible piece of evidence or have left out A
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 B
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 C
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 Selva raj (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 D
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 E
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 F
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 G
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 H
1040 SUPREME COURT REPORTS (201 OJ 15 (ADDL) S.C.R.
A 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
B 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
c 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
D 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).
E 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
F 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
, G 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
H was sought to be proved by this witness.
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1041
POLICE, T. NADU [V.S. SIRPURKAR, J.]
24. It was also tried to be suggested on the basis of the A
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 B
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 c
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) E
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 F
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 G
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 H
1042 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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)
B 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
c 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
E 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
F 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-
G 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
H to come on the spot. Selvaraj (PW-14) had specifically stated
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1043
POLICE, T NADU [VS. SIRPURKAR, J.]
that he was doing his real estate business and that he alongwith A
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 B
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 c
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 D
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 E
dubbed as the chance witnesses.
27. Other criticism levelled against these witnesses was that
the statements of Selva raj (PW-14) and Paramasivam (PW-15)
were not recorded immediately. While the statement of Selva raj F
(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 G
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. Selva raj
(PW-14) has explained that he was afraid and, therefore, did not H
1044 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
C 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
E 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,
F 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
G 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
H
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1045
POLICE, T. NADU [V.S. SIRPURKAR, J.]
creditworthy. He was frank enough in admitting that he left the A
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 B
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 C
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 D
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 E
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 F
@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 G
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 H
1046 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
C 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
D 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
E 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
F 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
G 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
H the photographs of the accused persons were published. On the
:JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1047
POLICE, T. NADU [V.S. SIRPURKAR, J.]
other hand, we find that Paramasivam (PW-15) had, in a flawless A
manner, conducted bo~h 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@ B
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- C
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 cine Thirugnanasambadam, ·o
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 E
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.
F
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 G
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
H
1048 SUPREME COURT REPORTS (2010) 15 (AOOL.) S.C.R.
A 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
B 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
C 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
D 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
E nothing brought out in cross-examination. It was 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 cross-
examination. As has already been stated earlier, the learned
F 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.
G 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
H that the witnesses are even otherwise acceptable, there would
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1049
POLICE, T. NADU [V.S. SIRPURKAR, J.]
i
be no question of rejecting the discovery only on this count. It A
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 c
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 E
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 F
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 G
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
H
'
1050 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A (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
B 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/
c 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
E 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
F 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
G 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.
H In his evidence he asserted that he was working as Scientific
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1051
POLICE, T. NADU [V.S. SIRPURKAR, J.]
Offi,cer in the Physics Department. He examined M.0.20 which A
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 B
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 c
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
0
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 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 E
occurrence and was seized by the Investigating Officer on the
same day. He, therefore, came to the co11clusion in the following
aspects:·
"1. General measurements F
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 G
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
th~ right foot was also found to be matching in item Nos.4 and
6. He, therefore, issued areport (Exhibit P.73). We have seen
H
1052 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B reason to discard this technical evidence. It was 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.
c 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,
D we need not consider the case of A-11, Prince L<umar since he
has already died and his appeal has become infructuous. Insofar
as Pavunraj (A-10) is concerned, apart frorr the fac ·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
E 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
F interrogation he voluntarily gave a confessional statement at 5.30
p.m. wherein he confessed 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
G 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
H whereas Pavunraj (A-10) is said to have discovered the envelope
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1053
POLICE, T. NADU [V.S. SIRPURKAR, J.]
containing Rs.5000/- and photograph of John Pandian. This was A
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 B
Exhibit P.54 which is supposed to be the confessional statement
of Pavunraj, while Exhibit P.55was 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 c
according to him while Pavunraj has confessed about Rs.200p!
- and a minor chain that seems to have been recovered by Prin,t:e
Kumar and while Prince Kumar agreed to discover Rs.50o/Jl-
and photograph of Annachi John Pandian, the said articles were I.
discovered by Pavunraj. This obvious mix up -.viU_compel ~s to 0
reject both these discoveries. In fact the discoveries of Rs.40001
- and a gold chain would be of no consequence as they c~nnot
be said to have been connected with the crime. On this badkdrop
of a mix up when we seen the evidence of Jayraman (PW-40),
that also does not help the prosecution. However, as vye have
pointed out earlier, there is sufficient evidence against Kumar E
(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.
F
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 ~tated 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 G
only the other 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-eonspirator. Since / he, has died. H
1054 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
c 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 ofTirunelveli.
In terms of the conspiracy, ultimately, John Pandian (A-7)
arranged the hired assassins, namely, Kumar Vellaichami (A-
0
9), Pavunraj@ Pavun (A-10) and Prince Kumar@ Prince (A-
11) and that is how, ultimately, a plan was made for the
elimination ofVivekanandan (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
E 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
F 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
G of a conspiracy appears to be the fact that the three totally
unknown persons to Vivekanandan (deceased) went all the way
from Palayamkottaimrunelveli and without any rhyme or reason,
fatally assaulted Vivekanandan (deceased). Indeed the only
inference which is possible is that the three assailants were hired
H to act as the assassins of Vivekanandan (deceased). There is
no other inference possible. lnspite of a very devoted
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1055
POLICE, T. NADU [V.S. SIRPURKAR, J.]
investigation, there is no nexus established between Kumar A
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/ B
Tirunelveli and to murderously assault Vivekanandan
(deceased). It must have been, therefore, a plan, for execution
of which the three assailants dia what is alleged against th~.m.
But, that would not be sufficient. The charge of conspiracy under
Section 120B IPC was framed against original accused c
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
0
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 Abhirama Vishnu (PW-2) are the relatives, namely, E·
·the father and brother ofVivekanandan (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 otherwitnes$es. The father
also spoke about the fact that Vivekanandan (deceased) and F
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 G
(A-1 ). She has also referred to Venkatraman's so-called affair
with a girl Sherry. She has also referred to t~e 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 H
1056 SUPREME COURT REPORTS (201 OJ 15 (ADDL.) S.C.R.
A 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. She has
B 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
c 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
0
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,
E 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 Ganesan
F (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
G 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 ).
H 39. The other witnesses are Veerendrakumar G,upta (PW-
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1057
POI ICE, T. NADU [V.S. SIRPURKAR, J.]
I
4) and Ram Ganesh (PW-5). He referred to the fact that A
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 B
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
Venkatraman (A-1) being close to the couple and moving c 1
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
0
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 ),
E
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 F
impress Sunitha (PW-3). There i$ no cross-examination on this
vital aspect. The last witness in this group isZakria (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 conversations with Venkatraman (A-1 ). G
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 Jhe love affair of Venkatraman (A-1) with H
1058 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A Sherry arid 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
B 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 Nrtness and he has signed as second witness.
c 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
c'ome 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 there was no new girl in his life. He has also referred to the
0
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
E 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
F married. It has further come thatVenkatraman (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
G 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 (PVV-3) got married to
Vivekanandan (deceased) after which Venkatraman (A-1)
started feeling dejected and upset, so much so that he expressed
H
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1059
POLICE, T. NADU [V.S. SIRPURKAR, J.]
that if only Vivi (Vivekanandan) had not been there, he would A
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 B
as has rightly been inferred by the prosecution. The clueless
assassination ofVivekanandan (deceased) when read with this
evidence suggests that this yearning on the part ofVenkatraman
(A-1) for Sunitha (PW-3) was a driving force behind the motive
to eliminate Vivekanandan (deceased). c
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. D
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 p.: E
24. Sivakumar's signatures were proved at Exhibit P-25. !twas,
therefore, alleged that Venkatraman (A-1) gave Rs.3 lakhs to
Sivakumar who was a mere office boy by sign:ng a self cheque.
The prosecution claims that substantial amount of over one lakh
rupees was found with Sivakumar when he was arrested after F
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 G
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). H
1060 SUPREME COURT REPORTS [201 OJ 15 (ADDL.) S.C.R.
A 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
B by the Inspector after three 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
C 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
0
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
E 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
F after the Police Inspector 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
G 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 ofVenkatraman with this witness. We, therefore, accept
the evidence of this witness to the extent that Venkatraman (A-
H 1) had insisted upon telephoning Sunitha and asking her whether
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF1061
POLICE, T. NADU [V.S. SIRPURKAR, J.]
she had telephoned him and further that he was extremely A
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), B
Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem (A-6) and John
Pandian (A-7) to eliminate Vivekanandan from this world.
42. Before we go to consider the case against the other
accused it will be better to see the role played by John Pandian C
(A-7). As per the prosecution case, he was the main link besides
Venk.atraman (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 D
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 E
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 F
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 reservation Chart for S2 coach. Cyril Raj (PW-21) proved
Exhibits P-16 and P-17. Exhibit P-16 is the railway reservation G
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 H
1062 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
c railway application seems to have been singed by A-2,
Sivakumar.
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
D (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
E 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
F Exhibit P-29 the attendance register of New Vijaya Lodge,
Coimbatore allegedly bearirig 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
G 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 Coimbatore Dravida Kazhagam Youth Wing.
In his evidence, he also examined the specimen signatures of
H Venkatraman (A-1) and the specimen signature of Pavunraj. In
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1063
POLICE, T. NADU [V.S. SIRPURKAR,).]
his evidence he claimed that the signatures marked as Exhibit A
P-14, the reservation slip marked as Exhibit P-24 the cheque
and the hand writing marked as S 1 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 B
was the reservation slip Exhibit P-14. Similarly in respect of Tamil
Selvan also he gave the opinion that the handwriting marked as·
SB to S14 and signatures B1 to BB as also signatures Q5, QB, '
09, 011 and 012 were written by him. He al~o suggested the
possibility of the same person writing 04, 06, 07 and 010. It c
will be seen that 05, Q6, QB pertain to Jankiraman Hotel,
Tirunelveli while 010 pertained to Blue Star Hotel Tirunelveli.
Again 012 is the signatures on the carbon copy of receipt No.
72250 (Exhibit P-27) while 013 is signatures on the cheque -
bearing No.162BB3 dated 30.7.93 which is proved to have been
0
in his handwriting. He has not spoken about John Pandian (A-
7) or his alleged writing.
44. On this backdrop when we see the evidence of K.P.
Rajan (PW-1B) and the documents proved by him being Exhibit
P-B, P-9, P-10, P-11 and P-12. Exhibits P-11and12 pertained E
to marked portion of visitors' book dated 1B.7 .93 where he is
shown to be staying in MLA's room. Exhibit P-11 and 12 also
show his name whicn 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 ML~'s hostel in the year 1993. F
He claimed from the documents Exhibit PB 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 G
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 I
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 H
1064 SUPREME COURT REPORTS [2010] 15 (ADDL1 S.C.R.
A identification parade held in case of John Pandian nor h is he
identified him even in the Court. We are not in a position tc hold
as to how the mere name of John Pandian could be conn 1 cted
with John Pandian (A-7) as nobody identified him. If there vere
entries of the persons visiting John Pandian, none of ~'1em
B pertained to Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5,' and
Abdul Kareem (A-6), which was the case of the prosecution rhe
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
C visitor was seen by watchman. No such watchman was
examined nor wa$ John Pandian got identified by suc:i 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
D caw1ot 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
wan•ed to suggest that accused Nos. 5 and 6 belonged to PMK
E 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 suggested that acquitted Ganesan (A-8) was a person of
F 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
G 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 (A 7) merely on
H the basis of the answers given by Yusuf (A5) and Abdul Kareem
JOHN PANDIAN v~ STATE REP. BY INSPECTOR OF 1065
POLICE, T. NADU [V.S. SIRPURKAR, J.]
(A- 6) that they knew John Pandian A-7 or that Kumar (A-9) and A
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 B
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 en·ough to connect John Pandian (A-7) effectively
with the other accused persons. There is simply no evidence of
any nexus between Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A- c
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 0
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
E
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) 'lr.1dependently 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 F
Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5), Abdul Kareem
(A-6) made thqse calls and the calls were in respect of the
conspiracy.
45. Two other witnesses, namely, Shanmugasundaram G
(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) H
. \
1066 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
c 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 purchasing and selling.
0
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
E 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
F 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
G 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
H
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1067
-1
POLICE, T NADU [VS. SIRPURKAR, J.]
conspiracy is very hard to be found and the prosecution would A
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 Vivekanandan
from the scene and from this world. 'However, again the question
remains as to whether there is sufficient evidence to connect s
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 c
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
0
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 E
therefore, 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 F
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 G
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 H
1068 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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. Gansaluez (PW-
20) and Cyril Raj (PW-21) have not identified him even in the
Court. The only other evidence against him is by
C 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 cal!s from the
STD booth of PW-39, Mohd. Rafi. That is all the evidence against
0
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
E 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
F to be truthful. However, we do not approve of the stand take by
the two courts below on 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-
G 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
H excepting the fact that he moved along with other accused
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1069
POLICE, T. NADU [V.S'. SIRPURKAR, J.]
persons. There is nothing to suggest that he had any nexus with A
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 B
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.
· 49. Next we will consider the case of A-6, Abdul Kareem
c
@ 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 D
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 - E
pt;rsons 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 F
· 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. G
They do not in any 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
H
1070 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.
A their evidence. PW-26 was Ramasubramaniam who spoke
about the stay of Tamil Se Ivan (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
B 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. Veerasamywho acted as the mahazarwitness.
According to this witness, this accused had· discovered
Rs.18,000/-, two sovereigns gold chain and a scooter. He
c 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
0
he has, the prosecution has miserably failed to show that the
money passed to him was only from 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
E 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
F 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
G 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).
H We have already commented that we are not impressed by the
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1071
POLICE, T. NADU [V.S. SIRPURKAR, J.]
travels made by this accused alongwith the other three accused A
persons, namely, Sivakumar (A-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), B
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 ofthis"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 c
Ram Kumar (PW-23) even in the Court nor was he put up for
identification parade. Shri K. Ramamoorthy, learned Senipr
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
0
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, E
learned Counsel for Ubaiadulla @ Tamil Selvan (A-4) very
seriously contested 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 F
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.
G
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 H
1072 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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 for identification
parade at the instance ofFrancis@ Chellakili (PW-31). He, in
his cross-examination, very specifically stated that there was no
C 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
D 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
E (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.
F 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) and the carbon copy of receipt
(Exhibit P-27) were compared with the admitted specimen
G signatures of Tamil Selvan. In his opinion, Exhibit P-16 marked
as Q5, Exhibit P-20 marked as QB, Exhibit P-21 marked as Q9,
Exhibit P-26 marked as Q11 and Exhibit P-27 marked as 012
were written by him. As regards the rest, there was a possibility
of the same person having made the handwritings. From this,
H Shri Ramamoorthy urged that the presence of this accused in
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1073 •
POLICE, T. NADU [V.S. SIRPURKAR, J.]
Jankiram Hotel and Blue Star Hotel was established and, A
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 B
it is held that Tamil Selvan had reserved and that it was Tamil .
Se Ivan whose admitted handwriting tallied with that handwriting,
it may, at the most, prove the presence of Tamil Selvan in those
Hotels. In our opinion, Jhat is not sufficient to rope him in the
conspiracy. The established law is that every such circumstance, c
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 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
0
conspiracy. We have already expressed our doubts reg~rding
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 E
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 F
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 G
absence of all these materials, it will be extremely risky to convict
him on the basis of his being a conspirator. It was further
suggested that in the arrival registers being Exhibit P-20 and
Exhibit P-26 pertai.iing to Jankiram Hotel and Blue Star Hotel
H
1074 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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.
B 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 ~ncashing the self-cheque, we do not see
C 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)
D 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 up to prove that he was
present in Blue Star Hotel. As has been said earlier, Ram Kumar
E (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
F 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
G 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
H Q3 because he was asked to encash the cheque given to him
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF1075
POLICE, T. NADU [V.S. SIRPURKAR, J.]
by Venkatraman (A-1 ). In respect of Q1, however, which is a train A
reservation form vide Exhibit P-14, even handwriting expert is
not so sure when he says that there is possibility of the same
person writing 01, 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 8
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, theraafter, he agreed to discover the C
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 prim a 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
0
he had not given back the cash. Shri Ramamoorthy, learned
Senior Counsel tried to submit that this accuse.d 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 E
not discharged that burden. Shri Ramamoorthy also tried to
argue that this was a man of 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 F
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 h.ave had G
number of opportunities to contact or to secure the services of
John Pandian (A-7) even if it is presuti1ed 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
H
1076 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A @ 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
8 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 existen·ce of the conspiracy by itself would not give
rise to a f ... rther inference that Sivakumar(A-2) was a conspirator.
C For that, the prosecution had to prove something positive, which
in this case, the prosecution has not been able to prove.
55. lnspite of the concurrent judgment of the trial and the
appellat~ Court in this case, more particularly, against accused
Nos. 2 (Sivakumar), 4(Ubaiadulla), 5 (Yusuf), 6 (Abdul Kareem),
D 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
E 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:
F
"The gist of the offence is an agreement to bredk 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."
G
In Halsbury's Laws of England the definition of conspiracy
is as under:
"Conspiracy consists in the agreement of two or more
H persons to do an unlawful act, or to do a lawful act by unlawful
JOHN PANDIAN v. STATE REP. BY INSPECTOR OF 1077
POLICE, T. NADU [V.S. SIRPURKAR, J.]
means. It is an indictable offence at common law. The A
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 commiffed so long as the
combination persists, that is until the conspiratorial B
agreement is terminated by completion of its performance
or by abandonment or frustration or however it may be".
In American Jurisprudence, 2nd Edn., Vo/.16, Page 129, the
following definition of conspiracy is given:
c
"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 D
conspiracy."
Lastly, in celebrated case of Kehar Singh & ors. v. State
(Delhi Administration) (1988 (3) SCC 609] it was observed by
Jagannatha Shetty, J.: E
''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 F
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 Van Riper G
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."
H
1078 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B Mohd. Hussain Maniyar v. State of Maharashatra [1981 (2)
sec 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
C 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
D inference of an agreement between two or more persons
to commit an offence."
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
E 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
F 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
G 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
H or an act which is not illegal, by illegal means. A few bits here
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1079
POLICE, T. NADU [V.S. SIRPU~KAR'\ J.] \
and a few bits there on which the prosecution relies cannot be A
held to be adequate for connecting the .accused with the
commission of the crime of criminal conspiracy. It has to be
shown that all 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 B
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 D
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 Agrawa/'s case (cited supra) was reiterated and it was E
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
conspiracy. Conspiracy is conceived as having three elements:
(1) agreement; (2) between two or more persons by whom the F
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. G
State of Kera/a [2005 (12) sec 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 H
1080 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C R
A 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
B in Navjot Sandhu's case and K.R. Purushothaman's case.
58. However, when we test the facts of this case, vis-a-vis
the above parameters it has to be said that what 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),
C 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
D 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
E 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
F 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.
Therefore, a very important link that Sivakumar (A-2), Ubaiadulla
G (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
H is absolutely no evidence that Venkatraman (A-1) in any manner
JOHN PAN DIAN v. STATE REP. BY INSPECTOR OF 1081
POLICE, T. NADU [V.S. SIRPURKAR, J.]
knew about John Pandian or he wanted to contact him and, A
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 B
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 C
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. 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- D
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 E
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 F
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.
G
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-4), Yusuf (A-5) and Abdul
Kareem (A-6) and John Pandian (A-7) were the conspirators.
H
1082 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
c 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
0
that a very important link in the conspiracy is snapped.
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
E 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
F 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.
G
B.B.B. Appeals disposed of.
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