# 15 (ADDL.) S.C.R 1012 JOHN PANDIAN v. STATE REP. BY INSPECTOR OF POLICE;, T. NADU

- **Citation:** [2010] 15 S.C.R. 1012
- **Court:** Supreme Court of India
- **Decided:** 2010-12-03
- **Case number:** Criminal Appeal No. 452 of 2007
- **Bench:** V.S. Sirpurkar, Cyriac Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-1012-john-pandian-v-state-rep-by-inspector-of-police-t-nadu-26724
- **Pages:** 71

## Headnote

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
0
allegedly waylaid the deceased pursuant to which A-9 severely
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 A1 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-conspiratorJustification - Held: Not justified - The evidence against A-7
was insufficient - No effort was made by the prosecution to
identify A-7 though he could have been easily identified -A-7
granted benefit of doubt.
F
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 just

## Text

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A
B
(2010] 15 (ADDL.) S.C.R 1012
JOHN PANDIAN
v.
STATE REP. BY INSPECTOR OF POLICE;, T. NADU
(Criminal Appeal No. 452 of 2007)
DECEMBER 3, 2010
[V.S. SIRPURKAR AND CYRIAC JOSEPH, JJ.]
Penal Code, 1860:
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
0
allegedly waylaid the deceased pursuant to which A-9 severely
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 A1 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-conspiratorJustification - Held: Not justified - The evidence against A-7
was insufficient - No effort was made by the prosecution to
identify A-7 though he could have been easily identified -A-7
granted benefit of doubt.
F
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 A4 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, PW15 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,
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
F
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 accusedappellants can be divided into two groups. The first group
is A-9, A-10 and A-11 who were involved by the direct
8 ocular testimony and were also part of the conspiracy to
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 eyewitnesses 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; 1045E-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
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
F
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
0 matched M.0.20 with M.0.17 which was a colour photo of
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 A1 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
3.1. lnspite of the concurrent judgment of the trial and
B
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 socalled conspiracy for eliminating PW3's husband. He had
no enmity with the deceased. These travels along with the
accused cannot be said to be the links or prove any part
of the conspiracy alone. His travels could have been for
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]
H
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
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] [1073C-H; 107 4-A]
H I
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
0 if it was shown that this accused received this cash from
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
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, AB
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
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]
F
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] [1081E 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, A6 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
B
AIR 1961 SC 1762
referred to
Para 55
1988 (3) sec 609
referred to
Para 55
1999 (5)·s•;c 253
referred to
Para 5-S
(13 F 2d. 961)
referred to
Para 55
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
F
1993 (3) sec 609
referred to
Para 57
2005 (12) sec 631
affirmed
Para 57
CRIMINAL APPELLATE JURISDICTION : From the
Judgment & Order dated 04.04.2006 of the High Court of
G Judicature at Madras in Criminal Appeal No. 121 of 2003.
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,
0 however, Venkatraman (accused No.1) committed suicide while
accused No.11, Prince Kumar @ Prince died. Thus, in the
present appeals, we are left with original accused Nos. 2, 4, 5,
6 and 7 and accused Nos. 9, 10 and 11. For the sake of
convenience, we shall refer to the accused persons from their
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
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
B
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
Viv~nandan for ever.
6. It was suggested that Sivakumar (accused No.2) who was
E
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
0 were ~iven to Ubaiadulla (A-4) and Yusuf (A-5) and Abdul
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 (A11) 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 (AH 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 (PW56) 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
statements of various witnesses including some of the eye
witnesses during the investigation in the next 4-5 days.
Venkatraman (A-1) was not to be seen. Thiru Rathinasabapathy
(PW-56) had recorded statements of friends and all the possible
witnesses who could have seen the ghastly incident. Almost all
the angles were examined by the investigation officer by
recording the statements of number of witnesses including the
shop owners, friends and relatives of Vivekanandan. He also
seized some documents. On 29.8.1993 at about 2.15 p.m., when
E
F
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.