“Reportable”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 452 OF 2007

John Pandian … Appellant

Versus

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

With

CRIMINAL APPEAL NO. 453 OF 2007

Abdul Kareem … Appellant

Versus

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

With

CRIMINAL APPEAL NO. 455 OF 2007

Sivakumar … Appellant

Versus

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

With

CRIMINAL APPEAL NO. 2285 OF 2010 [Arising out of SLP (Crl.) No. 1217 of 2007]

1

Yusuf … Appellant

Versus

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

With

CRIMINAL APPEAL NO. 503 OF 2007

Ubaiadulla @ Tamil Selvan … Appellant

Versus

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

With

CRIMINAL APPEAL NO. 272 OF 2008

Kumar & Ors. Appellants

Versus

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

J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of Criminal Appeal Nos.  

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

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

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

3. All  these  appeals  are  against  the  conviction  of  

accused persons who were convicted by the trial Court  

2

and  the  appellate  Court  for  offences  under  Sections  

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

and Section 302, IPC substantively.  

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

tried  for  the  offence  of  murder  of  Vivi  @  Vivek  @  

Vivekanandan.  The trial Court convicted the original  

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

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

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

offence under Sections 302, IPC read with Section 34,  

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

convicted  for  the  substantive  offence  the  other  two  

accused persons were convicted with the aid of Section  

34  IPC.   The  trial  Court  acquitted  accused  No.3  

Subramaniam @ Subbu Kutty s/o Ramasamy Gounder.  There  

was no appeal against his acquittal filed by the State.  

Venkatraman Krishnan @ Venkatraman @ Thambu, s/o Surya  

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

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

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

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

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

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

3

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

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

convicted  for  offence  under  Section  120B,  IPC.  

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

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

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

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

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

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

acquitted, all the rest filed appeals before the High  

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

Ganesan was allowed and he was acquitted.  The appeals  

of the remaining accused persons were dismissed and the  

conviction  and  sentences  passed  against  them  were  

confirmed.  During the pendency of this appeal, however,  

Venkatraman  (accused  No.1)  committed  suicide  while  

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

present appeals, we are left with original accused Nos.  

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

sake  of  convenience,  we  shall  refer  to  the  accused  

persons from their original accused numbers.   

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

having resulted in the gruesome end of the deceased.  We  

4

shall first start with the gruesome murder of deceased  

Vivek @ Vivekanandan which took place on 17.8.1993 at  

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

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

Coimbatore.   The prosecution painted a picture that  

Vivek and the original accused No.1 Venkatraman, whose  

family  owned  Laxmi  Vilas  Mills  at  Coimbatore  were  

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

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

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

going  on  between  Sunitha  and  Vivek  which  ultimately  

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

everything should have come to an end with that marriage  

and they should have been left to live happily forever  

but unfortunately that was not to be.  The prosecution  

painted a picture that even after their marriage the  

fatal attraction which Venkatraman (accused No.1) felt  

for Sunitha did not end and he remained a close friend  

of Vivekanandan and Sunitha to the extent that on the  

earlier day on which the murder took place they had even  

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

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

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

he had even provided them with a telephone line.  He  

5

also helped the couple in establishing their house by  

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

was also tried to be shown by the prosecution that after  

the marriage of deceased Vivekanandan with Sunitha there  

was  a  brief  love  affair  between  accused  No.1,  

Venkatraman  and  one  Sherry  who  was  a  student  of  an  

engineering college.  Though Venkatraman (accused No.1)  

got married to Sherry in a secret manner perhaps after  

converting her to Hinduism, Sherry did not honour her  

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

and  went  back  to  Kerala  and,  thereafter,  also  got  

married to one Thomas and left the country to live in  

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

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

therefore,  hatched  a  conspiracy  along  with  the  other  

accused persons to eliminate the deceased Vivekanandan  

for ever.   

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

was  his  petty  employee  helped  him  in  establishing  

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

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

was a worker of a political party and also moved with  

another  name  called  Tamil  Selvan.   The  prosecution  

6

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

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

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

and was a leader of an organization called Porur Union  

Dravidar Kazhagam.

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

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

was contacted in order to arrange and hire assassins for  

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

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

Express and from there to Tirunelveli and stayed in a  

lodge called Sri Jankiram Lodge.  It is alleged that  

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

his telephone.  However, not being able to contact him  

and knowing that he had gone to Chennai they went to  

Chennai.  It is the prosecution case that John Pandian  

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

persons  met  him  there.   It  was  alleged  by  the  

prosecution that after meeting and settling with John  

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

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

Coimbatore.  In view of all these efforts, Venkatraman  

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

7

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

Thirupur Bank which was got encashed through Sivakumar  

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

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

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

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

Tiruneveli and stayed at Blue Star Hotel.  It is alleged  

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

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

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

assassins.  They came to Coimbatore on 2.8.1993 from  

Tirunelveli and stayed at Vijaya Lodge. It was alleged  

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

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

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

photograph  was  originally  a  joint  photograph  of  the  

marriage of deceased Vivekanandan with Sunitha. It was  

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

cut  that  photograph  and  separated  the  photograph  of  

Vivekanandan  from  the  photograph  of  Sunitha  which  

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

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

since there was heavy police bandobast at Coimbatore for  

two days and Vivekanandan was also not in town.  Abdul  

8

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

at Ukkadam locality in Coimbatore.  It was alleged that  

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

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

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

alleged that all the four accused persons went to Ooty  

and  stayed  at  Arthi  Lodge  and  on  the  morning  of  

17.8.1993,  they  proceeded  from  Ooty  and  came  to  

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

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

Kumar (A-11) assaulted deceased Vivekanandan mercilessly  

with aruval and murdered him on the spot.  This incident  

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

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

police station received an information that a person was  

lying near Richy Rich Restaurant.  One Valliappan who  

was  the  manager  in  a  company  run  by  Vivekanandan  

accordingly rushed to the spot, saw the situation and  

lodged the complaint.  On that basis, police started the  

investigation.   

8. The  investigating officer,  Thiru Rathinasabapathy  

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

9

chappal left by one of the accused persons near the dead  

body.

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

police officers in teams and deployed them to enquire  

about  the  accused,  the  occurrence  and  the  motive  

therefor.  He recorded statements of various witnesses  

including  some  of  the  eye  witnesses  during  the  

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

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

recorded  statements  of  friends  and  all  the  possible  

witnesses  who  could  have  seen  the  ghastly  incident.  

Almost all the angles were examined by the investigation  

officer  by  recording  the  statements  of  number  of  

witnesses  including  the  shop  owners,  friends  and  

relatives  of  Vivekanandan.   He  also  seized  some  

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

present at Karuppa Gounder Street near Chellamuthu Fruit  

Commission Mandy along with Head Constable 509 and other  

police party, he chanced to see second accused Sivakumar  

who was going towards North with a cloth bag in his  

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

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

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

10

balance  after  spending  some  money  out  of  the  amount  

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

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

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

disclose the incriminating articles including the money.  

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

two sovereigns of gold chain which he had purchased out  

of the commission money given to him as commission as  

also a scooter.  The police party was led by Sivakumar  

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

seized which was kept in a polythene bag.  The arrested  

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

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

was discovered.  He also discovered a gold chain along  

with the receipt of Sri Vignesh jewellery for purchasing  

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

6.30  the  police  party  reached  the  house  of  the  

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

discover the photograph of Sunitha and a pair of diamond  

ear studs purchased for her which he had hidden in a  

place.  He took the police party to his newly built  

house along with his father from where he took out from  

a white plastic bag kept in the safe locker a colour  

photograph  of  Sunitha  which  was  a  counterpart  of  

11

Vivekanandan’s  photograph  and  a  pair  of  diamond  ear  

studs.  The police party was then taken by Abdul Kareem  

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

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

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

at that time was parked along with Dharapuram Raod on  

the  Northern  side  of  Sudarshan  Lodge.   The  car  was  

searched  and  the  police  party  found  an  amount  of  

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

the photo cutting of deceased which was kept in a rose  

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

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

lodge  that  someone  had  stayed  in  the  false  name  and  

address, namely, Pandian Palanganatham, Madurai.  The  

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

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

It  was  booth  No.  30893.   The  investigating  officer  

seized  the  STD  calls  register  roll  confirming  that  

number  of  calls  were  made  to  telephone  No.72324  of  

Tirunelveli  which  was  the  telephone  number  of  John  

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

again  6.8.1993,  19.8.1993,  11.8.1993,  13.8.1993  and  

16.8.1993 etc.  There were in all ten calls made of  

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

12

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

the eye witness was also found and his statement was  

recorded.  The documents at Vijayalaxmi Mills of which  

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

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

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

11) had surrendered before Judicial Magistrate and they  

were  taken  into  custody.   The  cheque  books  and  the  

cheque  dated  13.7.1993  was  also  seized.   The  train  

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

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

were also found by the investigating officer and seized.  

The records of Vijayalaxmi Lodge were found out.  The  

investigating officer also collected the handwriting of  

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

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

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

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

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

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

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

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

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

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

13

weighing 12 gms. The money found out by Pavunraj was  

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

had been printed.  The investigation was conducted for  

finding  out  the  correctness  of  statement  made  by  

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

also  seized.   The  record  of  Blue  Star  Lodge,  

Tirunelvelli were also found out and seized.  The owner  

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

surrendered  before  the  Judicial  Magistrate.   Before  

that,  the  investigating  officer  had  also  seized  the  

minute books of Coimbatore District Dravidar Kazhagam  

and Porur Union Dravidar Kazhagam.  John Pandian’s house  

was also investigated and it was found that telephone  

No.72324  was  in  that  house  only.   The  Test  

Identification Parade was got conducted on 28.10.1993 in  

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

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

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

that Test Identification Parade.   

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

agreed  to  discover  the  aruval with  which  he  had  

committed  the  murder.   The  Identification  Parade  in  

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

14

material objects seized were sent for chemical analyzer  

examination in the forensic science laboratory and after  

completing the investigation the charge sheet was filed  

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

witnesses  came  to  be  examined  on  behalf  of  the  

prosecution.  The accused persons abjured their guilt  

and were ultimately convicted as has been stated above.  

Their appeals having been dismissed, the matters are now  

before us in these appeals.   

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

and  11,  namely,  Kumar,  Pavunraj  and  Prince  Kumar  

respectively, extensively argued and pointed out that  

the evidence regarding their identification and also the  

evidence  of  the  so-called  eye  witnesses  was  not  

creditworthy.  She pointed out that there was no reason  

for  these  accused  persons  who  were  the  residents  of  

Tiruneveli to have any grudge against the deceased.  She  

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

these accused persons.  Her further contention was that  

barring  one  eye  witness,  the  other  so-called  eye  

witnesses became available for recording their statement  

after  considerable  time  and  hence  they  were  not  

creditworthy.  Further, her contention was that there  

15

was no reason why the natural witnesses were avoided and  

the three unnatural witnesses came to be offered.  Her  

further contention was that the evidence of witnesses on  

Test Identification Parade was also not satisfactory and  

the whole exercise was a farce. She further urged that  

there  was  no  evidence  much  less  the  direct  evidence  

against  these  accused  persons.   In  so  far  as  the  

circumstantial evidence was concerned, she pointed out  

that an effort on the part of the prosecution to connect  

these  accused  persons  with  the  crime  was  of  no  

consequence.  The so-called discoveries and the evidence  

regarding their stay in the hotels or travelling in the  

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

She urged for acquittal.

12. Shri Senthil Jagadeesan, learned advocate appearing  

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

took  us  through  the  evidence  and  urged  that  these  

accused  persons  were  roped  in  only  on  the  so-called  

circumstantial  evidence.   He  pointed  out  that  the  

prosecution  had  miserably  failed  to  establish  any  

conspiracy  at  all  and  further  role  played  by  or  

connection  of  these  accused  persons  with  that  

conspiracy.  The learned counsel pointed out that the  

16

theory  of  discovery  from  the  accused  persons  of  

substantial amount was nothing but a myth and the so-

called  discoveries  made  were  farcical.   He  further  

pointed out that there was no reason for a wealthy and  

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

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

conspiracy  to  eliminate  the  deceased.   The  learned  

counsel further argued that the whole prosecution story  

of conspiracy was on an extremely weak pedestal and had  

collapsed.  The counsel further argued that there was  

good explanation offered by the accused No.2, Sivakumar  

for the amounts which were allegedly discovered from his  

house  and  the  Courts  below  have  looked  at  the  whole  

affair with jaundiced eyes.

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

urged that there was nothing to support the theory that  

Ubaiadulla  was  known  as  Tamil  Selvan  also.   Learned  

counsel pointed out that he had no reason whatsoever to  

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

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

evidence regarding his handwriting was also absolutely  

brittle.  He further argued that there was no evidence  

17

that  this  accused  ever  went  to  Chennai.   He  also  

suggested that the discovery was a farce.

14. Shri Ravi Kumar Tomar, learned counsel appearing  

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

from  this  witness  at  all  and  there  was  hardly  any  

evidence worth the name against this accused excepting  

that his name was mentioned in the reservation charts  

and  the  reservation  slips,  that  too  in  a  different  

manner.

15. Shri  Shekhar  Naphade,  learned  Senior  Counsel  

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

was absolutely no evidence against him.  He pointed out  

that there was no nexus established between Venkatraman  

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

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

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

Pandian  was  a  well  known  political  figure  and,  

therefore, the telephone calls made from a particular  

booth by itself could not be viewed as an incriminating  

circumstance.   Similarly,  his  photograph  being  found  

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

It was pointed out that there was no evidence worth the  

name available to establish that this accused had stayed  

18

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

persons there and hatched the conspiracy.  According to  

the learned counsel much stronger evidence was required  

for coming to the conclusion that there was conspiracy  

and this accused was an active member thereof.   

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

senior counsel urged that this was a case of classic  

investigation where the investigation officer had left  

no  stone  unturned.   Learned  counsel  was  at  pains  to  

point out that there was a definite aim with which the  

accused persons moved.  Shri Ramamoorthy urged that it  

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

evidence.  He further urged that firstly, the evidence  

of identification of the three accused persons, namely,  

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

wholly reliable and there was no cross-examination worth  

the name of the Magistrate or even the witnesses who had  

identified  the  accused  persons  and  the  evidence  was  

rightly accepted by both the Courts below.   

17. We  were  taken  through  the  evidence  against  the  

accused persons painstakingly by Shri Ramamoorthy who  

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

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

19

which  was  found  with  him  and  the  explanation  was  

palpably false.  Similar was the case in respect of the  

other accused persons.  Insofar as the eye witnesses are  

concerned, the learned counsel urged that the statement  

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

and he had the opportunity to see the incident in broad  

day  light  and  the  witnesses  had  correctly  identified  

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

the  identification  parade.  According  to  the  learned  

counsel  the  photographs  of  the  accused  persons  were  

never published.  He argued that the very fact that the  

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

came  all  the  way  from  Tirunelveli  and  murderously  

assaulted  the  deceased  suggests  that  there  was  a  

conspiracy.  Learned counsel very painstakingly pointed  

out  to  us  the  love  angle  of  this  whole  theory  and  

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

first  accused,  Venkatraman  which  has  resulted  in  the  

whole tragedy.  As regards the conspiracy theory the  

learned counsel urged that there was no explanation by  

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

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

He pointed out that it was very difficult to prove the  

conspiracy by direct evidence and, therefore, we would  

20

have  to  jot  down  the  circumstances  as  proved  by  the  

prosecution and then come to the conclusion regarding  

the existence of criminal conspiracy which was correctly  

drawn by trial and appellate Court.  As regards John  

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

kingpin and his complicity was clear as he was the only  

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

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

that there was false explanation given of these accused  

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

and that itself suggested that the accused persons were  

involved in the matter.   

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

now  to  examine  the  matter  to  decide  whether  the  

conviction of the accused persons is justified.

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

be divided into two groups.  The first group is Kumar  

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

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

abated] who were involved by the direct ocular testimony  

and  were  also  part  of  the  conspiracy  to  murder  

Vivekanandan.  The second group is that of the accused  

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

21

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

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

direct  evidence  against  them  insofar  as  the  act  of  

assault  on  deceased  is  concerned.   Thus,  the  only  

difference  in  the  two  groups  is  that  while  there  is  

direct  evidence  of  the  eye-witnesses  regarding  the  

assault on Vivekanandan against the first group, there  

is no such evidence in respect of the second group and  

the  prosecution  will  have  to  depend  upon  the  

circumstantial evidence of conspiracy against them.  

20. We,  therefore,  propose  to  consider  the  matter  

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

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

with  the  other  circumstantial  evidence  of  their  

complicity  in  this  crime.   However,  it  cannot  be  

disputed that if the evidence of the eye-witnesses is  

acceptable wholly as it was held by the trial Court and  

the appellate Court, then that by itself can become the  

basis of their conviction.  Normally, once the evidence  

is accepted by the trial and the appellate Court, this  

Court does not go into the exercise of re-appreciation  

unless it is shown that the appreciation of evidence by  

trial  and  appellate  Court  is  perverse,  not  at  all  

22

acceptable to trained judicial mind or so faulty as to  

require the inference of this Court or that the trial  

and  appellate  Court  have  relied  on  some  inadmissible  

piece of evidence or have left out of the consideration  

some  evidence  which  they  were  bound  to  consider  and  

appreciate.  We have seen the evidence and the judgments  

of  trial  and  appellate  Courts  very  closely  so  as  to  

satisfy ourselves as to whether the trial and appellate  

Court have properly appreciated the same and recorded  

the verdict of conviction.

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

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

expired, we need not comment about his complicity which,  

however, will be necessary to consider while considering  

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

evidence against the three accused basically consists of  

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

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

sought to support this evidence by leading the evidence  

of the Magistrate who held the Identification Parades  

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

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

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

23

Narayanan and Rajan.  Out of these witnesses who were  

asked to identify the said two accused the prosecution  

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

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

prosecution did not examine Shanmugsundaram, Nagarajan,  

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

was  held  on  15.9.1993  in  Central  Prison,  Coimbatore.  

The second Identification Parade was held on 28.10.1993  

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

witnesses.   Rajsekharan  (PW-54)  drew  the  mahazars  

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

correctly identified Pavunraj (A-10) and Prince Kumar  

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

correctly, twice.  The evidence of the witnesses and the  

mahazars also suggested that Selvaraj (PW-14) correctly  

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

twice.   Similarly,  Paramasivam  (PW-15)  identified  

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

two earlier witnesses.  The mahazar was also proved as  

Exhibit  P-84.   This  witness  also  held  the  Test  

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

28.10.1993 at the same place.  It was deposed by this  

witness  that  Ramalingam  (PW-16)  correctly  identified  

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

24

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

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

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

the  second  Identification  Parade  held  on  28.10.1993.  

The  witness  also  reiterated  that  the  necessity  of  

identifying  twice  was  on  account  of  the  opportunity  

given to the accused persons to change their clothes  

after the first identification.

22. The prosecution heavily relied on the evidence of  

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

third circumstance relied upon by the prosecution is the  

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

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

Road, Pollachi.  In that behalf the prosecution relied  

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

investigating officer and Anand (PW-41).   

23. The  next  circumstance  relied  upon  by  the  

prosecution was the engaging of taxi No. TAC 5667 by  

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

which was used by them for travelling from Tirunelveli  

to Ooty and Ooty to Coimbatore and back via Udumalpet.  

The prosecution sought to prove through the evidence of  

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

25

through check post at Barliar, Mettupalayam Road on 16-

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

that these three accused persons along with Ganesan (A-

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

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

62 on 16.8.1993.  The prosecution also relied on Senthil  

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

night of 16.8.1993 in hotel called Arthi Lodge, Ooty.  

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

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

sought to be proved by this witness.

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

the complaint and the First Information Report Annexures  

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

three accused persons.  Two of them waylaid deceased  

Vivekanandan  and  the  third  assaulted  him.   This  

supported the theory that Vivekanandan was assaulted by  

three persons in all.  The next circumstance relied upon  

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

50) who was the Scientific Officer who deposed that the  

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

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

and  confessional  statements  by  Pavunraj  (A-10)  under  

26

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

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

be connected.  It was further suggested that the amount  

recovered  in  one  of  these  recoveries  was  kept  in  an  

envelope in which there were printed words ‘Vijay Laxmi  

Mills Ltd.’.  The further circumstance relied upon was  

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

persons are alleged to have travelled extensively, cut  

photograph  of  Vivekanandan  was  found  along  with  

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

was also relied upon.  These are all the circumstances  

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

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

consider these circumstances also which have been relied  

upon by the trial and the appellate Courts.

25. There  can  be  no  dispute  that  Vivekanandan  

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

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

injuries on the vulnerable parts of his body like his  

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

intention of the assaulters can be gathered from the  

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

27

veechu aruval, a weapon with the handle and with the  

bent sharp blade.

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

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

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

opportunity to witness the incident.  Exhibit P-102 is  

the complaint which was given by Valliappan who was none  

else but the Manager of the company which Vivekanandan  

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

immediately after the investigating officer visited the  

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

became  available  to  the  police.   His  statement  was  

recorded  only  after  Valliappan  filed  the  complaint.  

Therefore, on that count, at least insofar as Ramalingam  

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

trial Court and the appellate Court have considered the  

criticism  by  the  defence  that  the  eye-witnesses  had  

changed  the  spot  inasmuch  as  the  eye-witnesses  had  

referred to the incident having taken place near ‘Titan  

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

was.  The appellate Court, in its elaborate judgment,  

has  also  considered  few  minor  and  insignificant  

contradictions  regarding  the  location  of  autorickshaw  

28

stand and some shops and has held that the incident took  

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

observation mahazar also suggested the same spot only.  

On that basis, a finding was written that the argument  

of the defence that the spot was sought to be changed  

was rejected.  The said argument was addressed before us  

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

the prosecution witnesses, particularly, Selvaraj (PW-

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

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

changing the spot.  One common comment can be made about  

these  witnesses  that  all  of  them  were  totally  

disinterested witnesses.  They had nothing against the  

accused persons nor were they interested in the accused  

so  as  to  speak  falsehood  in  order  to  obtain  the  

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

Counsel for the appellant that these three eye-witnesses  

were the chance witnesses.  We do not agree.  Ramalingam  

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

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

spot.   It  cannot  be  forgotten  that  it  was  he  who  

informed  Valliappan  that  the  deceased  was  murdered.  

Some  comment  can  be  made  about  the  other  two  eye-

witnesses,  who  in  their  evidence,  asserted  that  they  

29

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

specifically stated that he was doing his real estate  

business and that he alongwith his two other friends,  

namely, Shanmugasundaram and Nagaraj, used to assemble  

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

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

deceased Vivekanandan.  Similarly, Paramasivam (PW-15)  

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

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

auto  drivers  start  their  day  from  a  particular  spot  

where they usually come and then ply their auto in a  

particular area.  This witness claimed that he used to  

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

place.   So,  there  is  nothing  wrong  in  the  witnesses  

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

learned Counsel tried to suggest that these witnesses  

were  the  chance  witnesses  and,  therefore,  we  should  

discard  their  evidence  on  that  count.   That  is  not  

possible.  Both the Courts below have relied upon their  

evidence holding them to be credible witnesses.  This  

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

appreciation of the evidence in such cases.  Unless the  

appreciation by both the Courts below is found to be  

perverse,  unsustainable  and  basically  frivolous,  this  

30

Court will not go into the exercise of re-appreciation  

of  the  evidence.   We  have  seen  the  evidence  very  

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

these  witnesses  cannot  be  dubbed  as  the  chance  

witnesses.   

27. Other  criticism  levelled  against  these  witnesses  

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

Paramasivam  (PW-15)  were  not  recorded  immediately.  

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

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

statement after about 15 days.  It is true that the  

criminal courts would expect the statements of the eye-

witnesses  to  be  recorded  immediately  or  with  least  

possible delay.  The early recording of the statement  

gives  credibility  to  the  evidence  of  such  witnesses.  

But then it is not an absolute rule of appreciation that  

where the statement is recorded late, the witness is a  

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

upon  the  quality  of  the  evidence  of  the  witness.  

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

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

is  quite  natural.   It  has  come  in  the  evidence  of  

Rathinasabapathy  (PW-56),  the  investigating  officer,  

31

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

almost immediately after the inquest.  As for Selvaraj  

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

there is nothing unnatural.  In this country, people are  

not keen to become the witnesses and avoid the police-

interrogation.   That  should  have  happened  with  this  

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

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

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

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

reason to disbelieve him.  The trial and the appellate  

Courts  have  been  alive  to  this  situation  and  have  

considered this aspect.  Our attention was invited to  

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

that  he  asserted  that  the  statements  of  these  two  

witnesses were also recorded on 17.8.1993, which was not  

correct.   This  circumstance  was  considered  by  the  

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

therefore, need not go into that aspect.  The evidence  

was severely criticized on the basis that all the three  

witnesses had contradicted each other.  We do not think  

so.   All  the  three  witnesses  had  given  graphic  

description of the incident.  All of them have asserted  

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

32

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

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

started severely assaulting the deceased.  Insofar as  

role played by these accused persons is concerned, the  

evidence of all the three eye-witnesses is in consonance  

with each other and there does not appear to be any  

reason to discard their evidence.  In our opinion, the  

trial and the appellate Courts are right in accepting  

their evidence as truthful.  There is not a word of  

cross-examination  on  the  factum  of  assault  and  the  

manner thereof.  Therefore, we are not impressed by the  

argument of Ms. Mohana that the evidence of these three  

witnesses should be discarded.  We do appreciate the  

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

recorded  after  about  15  days,  however,  his  evidence  

appears  to  be  creditworthy.   He  was  frank  enough  in  

admitting that he left the place and never came back for  

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

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

test this fact as against the quality of his evidence,  

it  might  be  stated  that  the  witness  appears  to  be  

truthful  and  was  rightly  relied  upon  by  the  Courts  

below,  ignoring  the  time  taken  for  recording  his  

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

33

his evidence remained unshaken and like the earlier two  

witnesses, there was hardly any cross-examination.

28. All the three eye-witnesses have been corroborated  

by the fact that in the Test Identification Parade, they  

identified  the  accused  persons.   Barring  Kumar  s/o  

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

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

witnesses  have  been  able  to  identify  all  the  three  

accused  persons.   We  have  very  carefully  seen  the  

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

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

that in the first Identification Parade, only Pavunraj @  

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

available.  He held the first Identification Parade in  

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

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

the accused were identified twice by all these three  

witnesses.  He had also included the other witnesses who  

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

However, it has come that only these three witnesses  

were able to identify the accused persons Pavunraj @  

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

are impressed by the fact that even after changing their  

34

dresses, when the accused persons again stood for the  

identification, they were actually identified by all the  

three  eye-witnesses.   The  second  Test  Identification  

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

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

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

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

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

closely considered the evidence of this witness.  There  

is absolutely nothing which could be pointed out against  

the evidence being accepted.  In our opinion, the trial  

and  the  appellate  Courts  have  rightly  accepted  the  

evidence of Test Identification Parade, which has the  

effect of corroborating the evidence of the three eye-

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

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

will  not  be  sufficient  to  view  with  suspicion  the  

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

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

identified  him  as  the  assaulter.   The  evidence  of  

Identification Parade need not be viewed as a weak type  

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

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

the evidence of these three eye-witnesses suffer from  

35

any infirmity.

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

the  appellant  then  urged  that  in  the  complaint,  the  

person  who  assaulted  Vivekanandan  (deceased),  was  

described as a tall middle aged man and two persons of  

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

the  first  place,  in  the  absence  of  evidence  of  

Valliappan who was the maker of the FIR, this contention  

cannot be appreciated.  Nothing has been brought about  

in the cross-examination of these three witnesses and,  

more  particularly,  in  the  cross-examination  of  

Ramalingam  (PW-16)  that  they  had  described  the  

assailants to Valliappan and that it was on that basis  

that  he  made  the  report.   Ms.  Mohana  very  earnestly  

urged  that  it  was  an  admitted  position  that  this  

description did not fit any of the accused persons.  We  

do not think that the description given by Valliappan  

could affect the credibility of the evidence of these  

three eye-witnesses who had the full opportunity to see  

the accused persons and who had correctly identified the  

accused persons in the Test Identification Parades.  Ms.  

Mohana urged that the accused persons were shown to the  

witnesses  earlier  and  irresponsible  suggestions  were  

36

also  thrown  to  the  witnesses  that  they  had  seen  the  

photograph of the accused persons in the newspaper.  The  

defence has not brought on record any such newspaper  

where  the  photographs  of  the  accused  persons  were  

published.  On the other hand, we find that Paramasivam  

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

Identification  Parades  and  withstood  his  cross-

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

account  supported  with  by  the  evidence  of  Test  

Identification Parades is more than enough to seal the  

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

Kumar @ Prince (A-11).

30. Some other circumstances, however, were brought on  

record  by  way  of  circumstantial  evidence  against  the  

three  accused  persons.   The  most  important  of  these  

circumstances is the discovery of aruval effected at the  

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

along with Udumalpet Road, Pollachi.  This discovery was  

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

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

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

near  Udumalpet  Road  with  one  Thirugnanasambadam,  a  

police  van  came  and  stopped.   An  Inspector  and  some  

37

police men and other persons alighted from that van.  

The  said  person  was  the  9th accused,  Kumar.   The  

Inspector told Anand (PW-41) that the 9th accused, Kumar  

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

was required as witness.  He further suggested that the  

9th accused  took  all  of  them  to  the  Hindu  cremation  

ground along with Udumalpet Road, Pollachi and from the  

Northern corner of that cremation ground at a distance  

of 50 feet took out the  veechu aruval from the thorny  

bush.   

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

reiterated  that  Kumar  had  surrendered  before  the  

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

gave requisition to Judicial Magistrate on 21.9.93 for  

conducting his identification parade.  He referred to  

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

gave  a  voluntary  confessional  statement  before  the  

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

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

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

unfortunately left as they had some work and, therefore,  

he merely recorded their statements.  According to him,  

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

38

along with Udumalpet Road, Pollachi and in presence of  

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

a blood stained  aruval from thorny bush which was 50  

feet away from the road on the Northern side in the  

North East corner of the cremation ground.  The said  

confessional statement has been brought on record vide  

Exhibit P.56 while the seizure Mahazar has been proved  

as Exhibit P. 57.   

32. Very  heavy  criticism  was  leveled  by  Ms.  Mohana  

against this discovery on account of the fact that while  

the confessional statement was shown to have been made  

before  two  different  witnesses,  namely,  Jayraman  and  

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

time of actual discovery.  We have seen the evidence of  

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

statement having been made before him.  In fact Exhibit  

P.56  clearly  suggests  as  also  the  evidence  of  this  

witness  that  the  confessional  statement  was  made  by  

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

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

defence.   However,  there  was  nothing  brought  out  in  

cross-examination. It was inspector himself who recorded  

the statement on 29.10.93. We find nothing suspicious in  

39

the evidence of this witness or even in the evidence of  

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

cross-examination. As has already been stated earlier,  

the learned Counsel urged that two different sets of  

witnesses  could  not  have  been  used,  one  for  the  

confessional  statement  and  other  for  the  seizure  

Mahazar.   There  is  no  rule  that  the  same  set  of  

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

the confessional statement and the subsequent discovery  

in pursuance thereto.  Undoubtedly, if the same set of  

witness  is  used,  the  discovery  will  become  more  

acceptable and would gain credibility as the witnesses  

who have heard confessional statement would also have  

opportunity to see that what was confessed has resulted  

in the discovery in terms of the confession. But where  

it  is  found  that  the  witnesses  are  even  otherwise  

acceptable, there would be no question of rejecting the  

discovery only on this count.  It cannot be forgotten in  

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

both  at  the  time  of  confessional  statement  and  the  

subsequent discovery of aruval.  The Inspector has given  

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

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

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

40

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

particularly, in the circumstances of this case.  It has  

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

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

witnesses present and the confession is made only to the  

Investigating  Officer,  still  the  discovery  can  be  

accepted.   In  this  case  that  did  not  happen.   The  

confessional  statement  was  undoubtedly  made  before  a  

witness who entered the witness box and offered himself  

for  cross-examination.   Therefore,  the  fact  that  the  

confessional statement was made cannot be disputed nor  

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

discovered the veechu aruval from the cremation ground.  

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

was a open place and anybody could have planted veechu  

aruval.  That appears to be a very remote possibility.  

Nobody can simply produce a veechu aruval planted under  

the thorny bush.  The discovery appears to be credible.  

It has been accepted by both the Courts below and we  

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

fact that this weapon was sent to the Forensic Science  

Laboratory  (FSL)  and  it  has  been  found  stained  with  

human  blood.   Though  the  blood  group  could  not  be  

41

ascertained,  as  the  results  were  inconclusive,  the  

accused had to give some explanation as to how the human  

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

would very positively further the prosecution case.     

34. This takes us to the other circumstances against  

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

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

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

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

43)  to  prove  that  the  taxi  passed  through  the  check  

post.   There  is  nothing  to  disbelieve  this  fact.  

Therefore, this fact must be accepted that taxi did pass  

twice through Ooty.  This circumstance has been accepted  

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

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

that this was the taxi used by three accused persons to  

travel from Tirunelveli to Coimbatore.  There is the  

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

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

Hotel Arthi Lodge, Ooty.  That circumstance was sought  

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

the  Guest  Register.   The  witness  suggested  that  the  

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

42

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

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

deposed that there were three other persons accompanying  

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

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

prosecution though the investigation agency could lay  

hands on the register, the witness did not identify any  

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

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

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

along  with  two  accused  as  was  suggested  in  the  

prosecution case.  The criticism was that no accused  

person was identified by this witness even in the Court.  

In fact it would have been surprising had the witness  

been able to identify the accused because he must have  

met the accused only for a very short time when the  

accused  gave  his  name  and  address  at  Tirunelveli.  

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

name  of  the  accused  with  his  address  in  Tirunelveli  

should find place in the register of Arthi Lodge.  This  

circumstance also has been accepted by the trial Court  

and appellate Court and we find no reason to take a  

different view.  

43

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

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

Officer.   In  his  evidence  he  asserted  that  he  was  

working as Scientific Officer in the Physics Department.  

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

deceased Vivekanandan which was found from the taxi in  

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

colour  photo  of  Sunitha,  the  unfortunate  widow  of  

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

were the photographs of a male and a female matched with  

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

photograph, the colour factor in both the photographs  

was  identical,  the  rear  side  of  the  photograph  was  

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

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

must be remembered that the photograph of Sunitha was  

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

photograph of deceased Vivekanandan was found from the  

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

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

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

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

deposed on examination of the foot prints, the footprint  

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

44

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

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

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

remembered that this footwear was left behind on the  

scene of occurrence and was seized by the Investigating  

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

conclusion in the following aspects:

“1.  General measurements

2.  Shape of fingers

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

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

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

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

Similarly  the  foot  print  of  the  right  foot  was  also  

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

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

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

agreement which have been arrived at in respect of both  

the  right  and  left  foot.   It  seems  that  there  was  

absolutely  no  effective  cross-examination  of  this  

witness  nor  was  the  witness  cross-examined  on  the  

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

reason  to  discard  this  technical  evidence.   It  was  

45

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

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

this  evidence  also.   This  circumstance  will  directly  

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

prosecution that the accused persons travelled in Taxi  

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

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

of the taxi and the accused having travelled in the same  

becomes all the more prominent.   

36. Insofar  as  the  other  two  accused  persons  are  

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

Kumar  since  he  has  already  died  and  his  appeal  has  

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

concerned, apart from the fact that he was identified in  

the identification parade by all the eye witnesses, he  

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

his house allegedly kept in a cover on which the words  

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

envelope there was a photograph of John Pandian.  In his  

deposition,  Rathinasabapathy (PW-56) suggested that he  

had examined accused Pavunraj when he arrested him and  

during  the  interrogation  he  voluntarily  gave  a  

confessional statement at 5.30 p.m. wherein he confessed  

46

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

when  he  was  taken  it  was  proved.   Similarly,  the  

investigating  officer  deposed  about  the  confessional  

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

would show the place where he had hidden the sum of  

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

Now, it so happened that when these accused persons were  

taken on 17.9.1993 exactly reverse happened and Prince  

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

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

said  to  have  discovered  the  envelope  containing  

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

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

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

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

minor chain was recovered in pursuance of the so called  

confessional statement belonged to one Amalraj.  Exhibit  

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

is  supposed  to  be  the  confessional  statement  of  

Pavunraj, while Exhibit P.55 was connected with Exhibit  

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

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

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

obviously  a  mix  up  because  according  to  him  while  

47

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

that seems to have been recovered by Prince Kumar and  

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

photograph of Annachi John Pandian, the said articles  

were discovered by Pavunraj.  This obvious mix up will  

compel us to reject both these discoveries.  In fact the  

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

consequence  as  they  cannot  be  said  to  have  been  

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

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

does  not  help  the  prosecution.   However,  as  we  have  

pointed  out  earlier,  there  is  sufficient  evidence  

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

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

Courts  have  correctly  convicted  them  for  the  offence  

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

the aid of Section 34 IPC.

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

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

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

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

convicted by the trial Court.  The State Government has  

not  challenged  his  acquittal,  leaving  only  the  other  

48

accused  persons  mentioned  above.   All  these  accused  

persons have been convicted as being the conspirators.  

Initially, when this appeal was filed, even Venkatraman  

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

challenging his conviction.  He was also roped in as  

being  a  conspirator.  Since  he  has  died  during  the  

pendency of these appeals, we need not consider his case  

and his appeal stands disposed of as infructuous.  There  

is no prayer before us to continue his appeal even after  

his death and as such, his appeal being Criminal Appeal  

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

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

according to the prosecution’s case.  The prosecution  

pleaded  that  the  idea  of  elimination  of  Vivekanandan  

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

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

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

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

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

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

was allegedly a powerful leader of a political party and  

was  resident  of  Tirunelveli.   In  terms  of  the  

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

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

49

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

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

elimination of Vivekanandan (deceased) from this world.  

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

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

be a further endeavour to find out as to whether the  

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

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

were the conspirators and whether the prosecution has  

been able to prove them as such.  Voluminous evidence  

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

be tied together for establishing that, firstly, there  

was  a  conspiracy  and  secondly,  these  appellants  

including Venkatraman (A-1) were the conspirators.

38. The  strongest  circumstance  in  support  of  the  

existence of a conspiracy appears to be the fact that  

the  three  totally  unknown  persons  to  Vivekanandan  

(deceased)  went  all  the  way  from  

Palayamkottai/Tirunelveli  and  without  any  rhyme  or  

reason,  fatally  assaulted  Vivekanandan  (deceased).  

Indeed the only inference which is possible is that the  

three assailants were hired to act as the assassins of  

Vivekanandan (deceased).  There is no other inference  

50

possible.   Inspite  of  a  very  devoted  investigation,  

there is no nexus established between Kumar Vellaichami  

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

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

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

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

reason for these three assailants to come all the way  

from  Palayamkottai/Tirunelveli  and  to  murderously  

assault  Vivekanandan  (deceased).   It  must  have  been,  

therefore,  a  plan,  for  execution  of  which  the  three  

assailants did what is alleged against them.  But, that  

would not be sufficient.  The charge of conspiracy under  

Section  120B  IPC  was  framed  against  original  accused  

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

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

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

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

to prove the motive behind the murder of Vivekanandan  

(deceased), which drew these accused persons together to  

conspire for causing murder.  The prosecution in the  

first  batch  examined  Krishnaraju  Kalingarayar  (PW-1),  

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

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

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

51

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

father  and  brother  of  Vivekanandan  (deceased)  

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

Krishnaraju  Kalingarayar  (PW-1)  spoke  about  the  

relationship  and  the  friendship  of  Vivekanandan  

(deceased) with the other witnesses.  The father also  

spoke about the fact that Vivekanandan (deceased) and  

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

married.  Similar is the evidence of Abhirama Vishnu  

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

friendship, as also her love affair with Vivekanandan  

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

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

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

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

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

Sherry having abandoned him and gone abroad and that  

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

then referred to his frustrated efforts to bring back  

Sherry from Thiruvananthapuram.  She also referred to a  

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

She further referred to a help that he gave when she  

with her husband shifted to the new house and about the  

fact that he offered his company telephone No. 211558.  

52

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

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

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

knew  that  she  was  going  to  marry  Vivekanandan  

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

referred to the interrogation by the police.  She said  

that she did not know whether the police had looked into  

their marriage album, though she admitted that police  

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

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

there  is  very  little  or  no  cross-examination  of  

Krishnaraju  Kalingarayar  (PW-1),  the  father  of  

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

brother of Vivekanandan (deceased) on the question of  

the photograph.  It must be remembered at this juncture  

that the photograph which the police found from the Taxi  

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

marriage photograph of Sunitha (PW-3) and Vivekanandan  

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

prove with the prosecution that the common photograph of  

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

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

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

Vivekanandan  (deceased)  was  found  in  the  taxi  with  

53

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

Senthil Jagadeesan, learned Counsel for the appellants  

that  the  marriage  photograph  was  supplied  by  Sunitha  

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

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

theory must fall down immediately for the simple reason  

that the other part of the photograph is alleged to have  

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

the police taken the photograph from the marriage album,  

they could not have planted the other half in the house  

of Venkatraman (A-1).

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

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

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

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

Vivekanandan  (deceased).   He  also  asserted  that  even  

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

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

There is nothing in his cross-examination to refute his  

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

hearing  about  the  proposed  marriage  of  Vivekanandan  

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

one  of  the  friends  of  the  couple  and  spoke  about  

54

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

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

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

peculiar  fact  that  immediately  after  the  murder,  he,  

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

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

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

that people would mistake (misunderstand).  There was no  

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

could not be demolished in the cross-examination, though  

specific  questions  were  put  about  this  subject.  

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

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

Vivekanandan (deceased) and his wife (Sunitha) having  

come to his showroom for selecting cloth of curtains.  

He  asserted  that  the  bill  was  paid  in  parts  by  

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

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

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

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

vital aspect.  The last witness in this group is Zakria  

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

specifically  asserted  the  same  story  like  the  other  

witnesses.  The  witness  has  also  referred  to  the  

55

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

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

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

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

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

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

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

fact  that  she  abandoned  him  and  got  married  to  the  

person  of  her  own  community.   The  witness  has  also  

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

going  to  Thiruvananthapuram  and  showing  his  marriage  

certificate to the pastor of a church there, whereafter  

the pastor said that it was only a marriage agreement,  

meaning  thereby  that  it  was  not  a  valid  marriage  

certificate.  The witness then referred to the fact that  

a record was created as if the marriage had taken place  

at  his  residence  at  Tirupur,  where  Vivekanandan  

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

second  witness.  What  transpires  from  his  evidence  is  

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

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

examination that he and Vivekanandan (deceased) used to  

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

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

56

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

to the fact that before the marriage of Vivekanandan  

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

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

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

dispute  that  this  witness  was  very  close  both  to  

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

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

record suggesting the marriage between Venkatraman (A-1)  

and  Sherry.   It  has  further  come  in  his  cross-

examination  that  even  before  he  had  prepared  the  

documents showing the marriage between Venkatraman (A-1)  

and Sherry, they were already married.  It has further  

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

documents were prepared changing the name as though the  

marriage had taken place at his residence.  All this  

proves the proximity of relationship between the witness  

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

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

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

for marriage, but his offer was not accepted; instead  

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

after which Venkatraman (A-1) started feeling dejected  

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

57

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

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

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

frustrated soul, particularly after he broke with Sherry  

who had abandoned him and got married to the person of  

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

was in the disturbed emotional state as has rightly been  

inferred by the prosecution.  The clueless assassination  

of Vivekanandan (deceased) when read with this evidence  

suggests that this yearning on the part of Venkatraman  

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

motive to eliminate Vivekanandan (deceased).

40. The other circumstance against this accused was his  

suspicious behaviour after the murder.  He had kept an  

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

Thirupur from 16.7.93 to 30.7.93 as per the evidence of  

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

this amount was deliberately kept.  It was from this  

account of Thirupur Branch that cheque No.162883 dated  

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

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

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

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

58

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

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

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

by signing a self cheque.  The prosecution claims that  

substantial amount of over one lakh rupees was found  

with Sivakumar when he was arrested after the murder.  

We will consider all this at the time when we consider  

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

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

Mill owner had got one cheque encashed through a mere  

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

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

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

accused is said to have said that people will mistake  

Sunitha in his car.  Thereafter, he got into another  

vehicle and left. The prosecution suggested that this  

suggested the mind of Venkatraman (A-1).   

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

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

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

know about the murder of Vivekanandan.  He also attended  

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

Kurichi. He was examined by the Inspector after three  

59

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

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

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

calling herself to be Sunitha had telephoned him and  

abused  him  in  English  saying  that  he  alone  killed  

Vivekanandan  and  thereafter  the  girl  hanged  up  the  

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

telephone Sunitha and ask as to whether she telephoned  

him.  The witness expressed his inability to telephone  

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

Sunitha in the morning.  He ultimately gave a promise to  

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

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

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

house himself and at that time he was pale and sweaty  

and asked him to telephone and ask Sunitha.  Manoj Kumar  

again convinced him that no contact should be made in  

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

when Vivekanandan decided to marry Sunitha, Venkatraman  

had  become  very  upset.   Some  minor  omissions  were  

pointed out from his cross-examination that he had not  

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

admitted in the cross-examination that Venkatraman had  

telephoned on the next day after the Police Inspector  

60

examined him.  Now this is a mistake committed by the  

witness because in the examination-in-chief his claim  

was that it was on the same night that Venkatraman had  

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

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

contradiction is of no consequence as to whether the  

telephone call was made in same night or after three  

days.  There has been no cross-examination to suggest  

that  there  was  no  telephonic  call  or  meeting  of  

Venkatraman with this witness.  We, therefore, accept  

the  evidence  of  this  witness  to  the  extent  that  

Venkatraman (A-1) had insisted upon telephoning Sunitha  

and  asking  her  whether  she  had  telephoned  him  and  

further that he was extremely agitated so as to visit  

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

All this lends support to the theory that Venkatraman  

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

However,  the  question  would  still  be  as  to  whether  

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

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

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

world.

61

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

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

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

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

pleaded that Venkatranam (A-1) contacted John Pandian  

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

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

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

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

the prosecution case that through these three accused  

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

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

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

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

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

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

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

travelled to Madurai and possibly further to Tirunelveli  

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

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

they  proceeded  to  Chennai  perhaps  to  contact  him.  

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

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

reservation  request  form  and  Exhibit  P-15  is  the  

62

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

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

railway reservation requisition and Exhibit P-17 is the  

reservation  chart  of  S1  coach.  It  is  apparent  from  

Exhibit P15 that the reservation chart for sleeper class  

that on 17.7.1993 Tamil Selvan Abdul Karim, Sivakumar  

and Yusuf travelled from Coimbatore to Madurai.  The  

reservation slip also suggests that these four, namely,  

Abdul  Karim,  Yusuf,  Sivakumar  and  Tamil  Selvan  had  

travelled.  It is clear from another document that on  

19.7.1993,  four  persons  bearing  these  very  names  

travelled from Madras Central to Coimbatore.  From this  

the prosecution alleged that firstly these four persons  

went to Madurai and probably from there they went to  

Tirunelveli  and  stayed  in  a  hotel  called  Blue  Star.  

These  two  witnesses  were  cross-examined.   However,  

nothing could be brought from their cross-examination.  

But the witness was not able to identify any of the  

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

not even know the Clerk who filled up the reservation  

form.  The railway application seems to have been singed  

by A-2, Sivakumar.   

63

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

proved  Exhibit  P-14.   This  witness  deposed  that  the  

train  ticket  reservation  form  (Exhibit  P-14)  the  

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

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

railway  ticket  reservation  form  (Exhibit  P-16)  dated  

19.7.1993  as  also  attendance  register  in  Jankiraman  

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

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

issued by the hotel dated 18.7.1993 and Exhibit P.26  

which  was  the  attendance  register  at  page  48  dated  

1.8.1993 pertaining to hotel Blue Star, Tirunelveli vide  

Exhibit P-27.  He examined these signatures which were  

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

examined the other documents which were Exhibit P-29 the  

attendance  register  of  New  Vijaya  Lodge,  Coimbatore  

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

also the attendance register of Arthi Lodge, Ooty and  

Sudarshan  Lodge,  Udumalpet.   These  documents  were  

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

7).  According to him he compared all these documents  

with  the  specimen  signature  of  Sivakumar  and  the  

signatures of Tamil Selvan @ Ubaiadulla. Ubaiadulla’s  

signatures  were  found  in  pages  of  Minutes  Book  of  

64

Coimbatore  Dravida  Kazhagam  Youth  Wing.   In  his  

evidence, he also examined the specimen signatures of  

Venkatraman  (A-1)  and  the  specimen  signature  of  

Pavunraj.  In  his  evidence  he  claimed  that   the  

signatures marked as Exhibit P-14, the reservation slip  

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

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

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

Sivakumar.   He,  however,  deposed  that  there  was  a  

possibility for the same persons writing the document  

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

Similarly in respect of Tamil Selvan also he gave the  

opinion that the handwriting marked as S8 to S14 and  

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

and  Q12  were  written  by  him.  He  also  suggested  the  

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

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

Jankiraman  Hotel,  Tirunelveli  while  Q10  pertained  to  

Blue  Star  Hotel  Tirunelveli.   Again  Q12  is  the  

signatures  on  the  carbon  copy  of  receipt  No.  72250  

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

bearing No.162883 dated 30.7.93 which is proved to have  

been in his handwriting.  He has not spoken about John  

Pandian (A-7) or his alleged writing.

65

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

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

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

12 pertained to marked portion of visitors’ book dated  

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

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

pertained  to  dates  27.7.1993  and  24.7.1993,  

respectively.  In his evidence he claimed to be working  

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

1993.  He claimed from the documents Exhibit P8 and 9  

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

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

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

is visitors register that one Visu had come to visit  

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

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

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

admitted that he was not directly aware of the entries  

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

has neither identified John Pandian earlier as there was  

no identification parade held in case of John Pandian  

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

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

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

66

nobody identified him.  If there were entries of the  

persons visiting John Pandian, none of them pertained to  

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

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

The investigating agency has done nothing to get John  

Pandian idenfied at least through the Receptionists who  

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

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

such  watchman  was  examined  nor  was  John  Pandian  got  

identified  by  such  a  watchman.   The  witness  drew  

complete  blank  as  to  who  was  the  watchman  on  duty.  

Those records were also not seized.  Therefore, the oral  

evidence of this witess or the contents of Exhibit P8 to  

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

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

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

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

that they travelled from Madurai to Madras in a train.  

The prosecution wanted to suggest that accused Nos. 5  

and 6 belonged to PMK party and they had accepted this  

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

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

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

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

67

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

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

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

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

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

all these circumstances the prosecution relied on the  

answers given by the accused persons in their Section  

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

clear.   The  examination  of  the  accused  cannot  be  

dissected  so  as  to  rely  on  the  inculpatory  part  and  

ignore the exculpatory part.  The examination of the  

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

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

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

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

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

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

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

and  even  if  it  is  presumed  that  they  travelled  from  

Tirunelvi to Madras and further even if it is presumed  

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

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

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

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

68

7) effectively with the other accused persons.  There is  

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

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

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

other evidence which was very heavily relied upon was  

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

who claimed that he was running the telephone booth at  

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

computerized billing system.  He proved the record of  

the telephonic calls made from that booth from 31.7.93  

and  proved  Exhibit  P-53.   Very  significantly  this  

witness was not even able to identify any of the accused  

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

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

This  by  itself  does  not  take  us  anywhere  either  to  

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

Abdul  Kareem  (A-6)  independently  or  their  connection  

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

claimed to be belonging to a political party.  Merely  

because some calls were made to his house that will not  

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

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

and the calls were in respect of the conspiracy.

69

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

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

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

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

Shanmughsundaram (PW-30) was doing business of buying  

and selling sacks in Big Market, Ukkadam.  He identified  

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

also deposed that a leader of Dravidar Kazhagam from  

Kuniamuthur used to come whose name was Sivakumar and  

they used to be talking to each about something.  He  

claimed that they usually go to STD booth and make calls  

and  also  deposed  that  he  had  heard  there  was  some  

problem  between  the  owner  of  Vijayalaxmi  Mills  and  

another  person  who  was  running  finance  business  at  

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

have  been  examined  by  the  police  Inspector.   In  his  

cross-examination he admitted that he was an accused in  

a  murder  case  and  that  when  he  was  examined  by  the  

police Inspector he was a member of Hindu Munnani.  He  

also  admitted  that  Hindu  Munnai  and  Dravidar  Kazhgam  

differed with each other on their policies.  He did not  

have  any  documentary  proof  to  suggest  that  he  was  a  

resident of Multhuvinayagar Street or residing at House  

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

70

purchasing and selling.  On the whole, the evidence of  

this witness does not inspire confidence at all.   

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

was running a mango fruit shop at Ukkdam.  He claimed  

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

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

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

hostile.   There  is  nothing  in  his  cross-examination  

which  would  give  credence  to  the  prosecution  case.  

Therefore, even if it is presumed that some calls were  

made  from  Ukkadam  telephone  booth  to  the  telephone  

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

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

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

the  evidence,  therefore,  when  we  consider,  does  not  

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

suspicion.  However, the law is clear that howsoever  

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

proof required to convict the accused.

47. We  are  quite  in  agreement  with  Shri  Ramamurthi,  

learned  counsel  appearing  for  the  State  that  the  

evidence of conspiracy is very hard to be found and the  

prosecution  would  always  have  a  great  difficulty  in  

71

proving the conspiracy and, therefore, the conspiracy  

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

was  a  conspiracy  to  eliminate  Vivekanandan  from  the  

scene and from this world.  However, again the question  

remains as to whether there is sufficient evidence to  

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

One must realize that if no connection is established  

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

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

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

travelling from Coimbatore to Madurai and from Chennai  

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

successfully.  We have said that could be the case of  

suspicion.   Further  no  effort  has  been  made  by  the  

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

have  easily  been  identified  by  the  staff  at  MLA’s  

hostel.  For some mysterious reasons that was not done.  

There could have been some evidence to suggest that he  

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

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

far from being satisfactory.  Under these circumstances,  

even if the trial Court and the High Court have found  

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

extremely  difficult  to  hold  him  so.   We  therefore,  

72

proceed to grant him benefit of doubt.   

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

Yusuf.  There is hardly any evidence against him which  

can brand him as a conspirator.  It was suggested that  

he was friendly with other accused, namely, Sivakumar  

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

been brought into the dragnet on the basis of his name  

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

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

Yusuf, male, 25 years of age travelled from Coimbatore  

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

Yousuf.  What the prosecution has been contending is  

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

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

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

this  accused,  like  the  other  friends  of  him  like  

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

was never put up for identification.  If the prosecution  

alleged that he stayed at the Sri Jankiram Hotel or Blue  

Star Hotel, he could have been got identified by the  

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

even if accepted, do not connect him with the conspiracy  

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

73

from the fact that no attempt was made to identify him  

even  by  the  railway  staff  of  the  train  in  which  he  

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

not identified him even in the Court.  The only other  

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

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

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

STD booth owner.  It was claimed that he along with  

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

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

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

this accused.  We have already shown that the evidence  

of  Shanmugasundaram  (PW-30)  does  not  inspire  any  

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

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

booth and make calls.  There is nothing suspicious about  

that.  After all there could have been hundred other  

reasons  to  make  calls.   We  are  again  not  impresses  

either by his evidence that he has said that Sivakumar  

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

Kuniamuthur.    Barring this witness, nobody has made  

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

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

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

74

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

accused  as  allegedly  this  accused  used  to  purchase  

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

He  was  declared  hostile  and  there  is  nothing  in  his  

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

that this accused used to come and make calls.  Beyond  

proving the call register there is nothing much in the  

examination  of  this  witness.   In  that  view,  it  is  

difficult to see any role much less important role being  

played  by  this  accused  in  furtherance  of  conspiracy  

excepting  the  fact  that  he  moved  along  with  other  

accused persons.  There is nothing to suggest that he  

had  any  nexus  with  the  so-called  conspiracy  for  

eliminating  Vivekanandan.   He  had  no  enmity  with  

Vivekanandan.   These  travels  along  with  the  accused  

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

conspiracy  alone.   His  travels  could  have  been  for  

various other reasons.  We do not approve of the finding  

of the trial Court and the appellate court that on the  

basis of this evidence this accused could be roped in  

the conspiracy.  Shri Ramamoorthy tried to justify his  

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

prosecution case.  He, therefore, deserves acquittal.   

75

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

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

participation in the conspiracy is tried to be proved  

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

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

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

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

Kumar was the witness who been examined to suggest that  

this accused stayed in Jankiram Hotel.  It was through  

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

He deposed that one N. Thamizhselvan of Coimbatore had  

come and stayed on 18.7.1993 and there were four other  

persons along with him and they had taken two rooms,  

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

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

were  made  to  the  local  number  72324  which  was  the  

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

been impressed by this evidence if this witness had at  

least  in  the  Court  identified  any  of  the  accused,  

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

this  accused.   What  is  significant  to  note  is  that  

according to this witness there were five persons in all  

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

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

76

manner  connect  this  accused  or  for  that  matter  even  

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

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

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

rejected their evidence. PW-26 was Ramasubramaniam who  

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

though it was the prosecution case that Tamil Selvan was  

accompanied by other accused persons, he said nothing  

about the others nor did he even identify Tamil Selvan  

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

identification  by  Ramasubramaniam  (PW-26)  or  by  Ram  

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

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

According to this witness, this accused had discovered  

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

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

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

consequence  whatsoever  unless  material  objects  

discovered are connected to the crime in any manner.  

Nobody deposed as to who had paid money to this witness  

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

purchased the so-called gold chain and the scooter and  

even if he has, the prosecution has miserably failed to  

show  that  the  money  passed  to  him  was  only  from  

77

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

the basis of discovery, it will be extremely risky to  

book  this  accused  and  hold  him  a  member  of  the  

conspiracy.  It must be said that all these aspects were  

viewed  by  the  trial  and  the  appellate  Court  with  

jaundiced  eyes.   Merely  because  there  are  some  

discoveries  they  do  not  in  any  manner  connect  the  

accused and there is no presumption that merely because  

the accused has some things in his possession, which he  

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

chain must have come only on account of the money that  

he had allegedly received as a member of the conspiracy  

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

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

conspiracy.   This  may,  at  the  most,  raise  suspicion  

against him but that would be completely without any  

justification. This accused would, therefore, has to be  

given the benefit of doubt.

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

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

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

impressed by the travels made by this accused alongwith  

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

78

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

extensively commented on the evidence of Gonsaluez (PW-

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

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

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

the owner of Blue Star Hotel.  None of these witnesses  

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

stronger evidence is expected in respect of this person  

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

register of Blue Star Hotel, Tirunelvelli vide Exhibit  

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

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

for identification parade.  Shri K. Ramamoorthy, learned  

Senior Counsel, very heavily relied on the evidence of  

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

the entries in Blue Star Hotel were in the handwritings  

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

handwriting expert is not be all and end all of the  

matter.   Where  the  witness  had  seen  the  accused,  it  

would  have  been  much  better  had  he  been  put  up  for  

identification parade and identified by the witness or  

at least had he been identified by the witness in the  

Court.   In  fact  Mr.  Anand,  learned  Counsel  for  

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

79

the claim of the prosecution that this accused was also  

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

Ubaiadulla, obviously being a Muslim gentleman, should  

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

led on behalf of the prosecution to support that he was  

also known as Tamil Selvan.  Prosecution could have led  

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

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

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

51. Shri  Ramamoorthy,  learned  Senior  Counsel  further  

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

to suggest that the Inspector of Police had seized the  

minute  book  dated  26.7.1992  vide  Exhibit  P-30  and  

Exhibit  P-31  dated  22.7.1992.   The  witness  claimed  

himself to be the Deputy President, District Youth Wing  

of  Dravidar  Kazhagam  and  suggested  that  vide  those  

resolutions  dated  22.7.1992  and  26.7.1992,  it  was  

resolved to convene a conference at Madurai and to do  

some other activities like conducting a cycle procession  

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

that one Tamil Selvan had signed in the resolutions.  

The witness has not even identified Ubaiadulla @ Tamil  

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

80

for identification parade at the instance of Francis @  

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

specifically stated that there was no person named Tamil  

Selvan amongst the accused persons and that the one whom  

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

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

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

very fact that the witness has not been able to identify  

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

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

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

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

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

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

Senior  Counsel  that  he  was  asked  to  write  the  word  

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

his evidence, has referred to the handwriting of Tamil  

Selvan  and  claimed  that  the  ticket  reservation  form  

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

(Tamil  Selvan).   Similar  entry  was  made  in  the  

attendance register of Jankiram Hotel vide Exhibit P-20  

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

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

81

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

compared with the admitted specimen signatures of Tamil  

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

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

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

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

a  possibility  of  the  same  person  having  made  the  

handwritings.  From this, Shri Ramamoorthy urged that  

the presence of this accused in Jankiram Hotel and Blue  

Star Hotel was established and, therefore, it was clear  

that not only had this accused travelled, but had also  

arranged  for  the  reservations  etc.  and  had  taken  an  

active part in staying with the other accused persons in  

Jankiram Hotel and Blue Star Hotel.  We have already  

commented on the travel aspect.  That does not impress  

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

reserved and that it was Tamil Selvan whose admitted  

handwriting tallied with that handwriting, it may, at  

the most, prove the presence of Tamil Selvan in those  

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

him  in  the  conspiracy.   The  established  law  is  that  

every such circumstance, which is relied upon by the  

prosecution for establishing conspiracy, must be proved  

to have nexus with that conspiracy.  In the absence of  

82

any  convincing  evidence,  merely  because  the  accused  

travelled together with others and he stayed in those  

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

perpetrate a conspiracy.  We have already expressed our  

doubts regarding his identification.  In the absence of  

his  identification,  even  if  these  handwritings  go  to  

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

suspicion against the accused, which in our opinion, is  

not sufficient.  He is said to have discovered a Titan  

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

as to how any of these material objects can be connected  

with the conspiracy.  No evidence has been brought on  

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

The  evidence  of  discovery  is  again  a  weak  kind  of  

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

refused to rely solely on the discovery evidence.  There  

is  nothing  brought  on  record  suggesting  that  these  

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

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

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

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

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

of all these materials, it will be extremely risky to  

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

83

was  further  suggested  that  in  the  arrival  registers  

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

Jankiram Hotel and Blue Star Hotel respectively, he gave  

the  same  wrong  address  as  Tamil  Selvan,  Gandhipuram,  

Coimbatore.  In our opinion, this is an extremely weak  

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

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

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

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

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

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

Vilas Bank, Thirupur Branch.  In his going and encashing  

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

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

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

to whether these 3 lakhs of rupees were for the purpose  

of  spending  in  order  to  fulfill  the  object  of  

eliminating Vivekanandan (deceased).  As is the common  

case, this accused also travelled alongwith others and  

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

Railway  reservation  charts  involving  his  name.  

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

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

84

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

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

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

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

something against this accused by saying that few days  

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

car alongwith this accused.  That claim is too general  

to  be  accepted  and  even  if  accepted,  it  leads  to  

nothing.   We,  therefore,  reject  the  evidence  of  

Anbunathan (PW-29).   

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

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

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

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

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

was  proved  on  the  reservation  slips.   Even  in  the  

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

there on Q2 and Q3, which are Exhibits P-24 and P-25.  

There  can  be  no  dispute  about  his  handwriting  on  Q3  

because he was asked to encash the cheque given to him  

by Venkatraman (A-1).  In respect of Q1, however, which  

is  a  train  reservation  form  vide  Exhibit  P-14,  even  

handwriting  expert  is  not  so  sure  when  he  says  that  

85

there is possibility of the same person writing Q1, Q2  

and Q3 and S1 to S7.  We are really not convinced with  

the  evidence  of  handwriting  expert  alone,  as  this  

accused had not been identified by anybody.  In fact, in  

comparison  to  the  other  accused  persons,  namely,  

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

Kareem (A-6), his role is greater, inasmuch as besides  

the common evidence, it was suggested that an amount of  

Rs.1 lakh was seized from him when he was arrested and,  

thereafter,  he  agreed  to  discover  the  other  cash,  

namely, Rs.21,000/- from his house.  Mere recovery of  

money would be of no consequence unless the prosecution  

comes out with a case and give some prima facie evidence  

that this cash was a part of the money that he had  

received after encashing the cheque.  In fact, there is  

nothing to suggest that he had not given back the cash.  

Shri Ramamoorthy, learned Senior Counsel tried to submit  

that  this  accused  should  have  given  some  explanation  

about  this  cash.   We  agree  with  this  contention,  

however, that would be only if it was shown that this  

accused received this cash from Venkatraman (A-1) and  

that too for the purpose of success of conspiracy.  The  

prosecution  has  not  discharged  that  burden.   Shri  

Ramamoorthy also tried to argue that this was a man of  

86

confidence of Venkatraman (A-1) being his office boy.  

We must, at this juncture, observe that Venkatraman (A-

1) was a mill-owner and was a fabulously rich person.  

He had all the resources at his command.  It is very  

difficult for us to swallow that a powerful person like  

Venkatraman (A-1) would take the help of some office boy  

in  such  a  sensitive  matter  as  this,  where  the  

elimination of Vivekanandan (deceased) was contemplated.  

This  is  the  basic  weakness  in  the  prosecution  case.  

Venkatraman (A-1) would have had number of opportunities  

to contact or to secure the services of John Pandian (A-

7) even if it is presumed that it was John Pandian (A-7)  

who procured the services of Kumar s/o Vellaichami (A-

9), Pavunraj @ Pavun (A-10) and Prince Kumar @ Prince  

(A-11).  Nothing has come up that there was any meeting  

of mind between Venkatraman (A-1) and Sivakumar (A-2) or  

that  Sivakumar  (A-2)  agreed  to  take  part  in  the  

conspiracy.  Such agreement is a must for proving his  

part in the conspiracy.  Further, there is nothing to  

suggest that Sivakumar (A-2) was so resourceful, so as  

to be able to secure the services of John Pandian (A-7).  

He was a mere office boy.  There is no doubt that there  

was a conspiracy to eliminate Vivekanandan (deceased),  

but the mere existence of the conspiracy by itself would  

87

not give rise to a further inference that Sivakumar(A-2)  

was a conspirator.  For that, the prosecution had to  

prove  something  positive,  which  in  this  case,  the  

prosecution has not been able to prove.

55. Inspite of the concurrent judgment of the trial and  

the  appellate  Court  in  this  case,  more  particularly,  

against  accused  Nos.  2  (Sivakumar),  4(Ubaiadulla),  5  

(Yusuf), 6 (Abdul Kareem), and 7 (John Pandian) we had  

to consider the evidence afresh as we are not satisfied  

with the appreciation of the evidence at the trial and  

appellate stage.  We find from the judgment that the  

Courts below have committed an error in first holding  

the existence of conspiracy and proceeding on that basis  

and then taking tit-bits in evidence to suggest that  

those  tit-bits  would  connect  the  accused  with  the  

conspiracy as the conspirators.  The law on conspiracy  

has been stated time and again by this Court. In Major  

E.G. Barsay v. State of Bombay reported in AIR 1961 SC  

1762, Subba Rao, J. observed:

“The gist of the offence is an agreement to break the  law. The parties to such an agreement will be guilty of  criminal conspiracy, though the illegal act agreed to be  done has not been done.  So too, it is not an ingredient  of the offence that all the parties should agree to do a  single illegal act.”

88

In  Halsbury’s  Laws  of  England the  definition  of  conspiracy is as under:

"Conspiracy consists in the agreement of two or more  persons to do an unlawful act, or to do a lawful act by  unlawful means.  It is an indictable offence at common  law. The essence of the offence of conspiracy is the  fact of combination by agreement. The agreement may be  express  or  implied  or  in  part  express  and  in  part  implied.. and the offence continues to be committed so  long  as  the  combination  persists,  that  is  until  the  conspiratorial agreement is terminated by completion of  its  performance  or  by  abandonment  or  frustration  or  however it may be".  

In  American Jurisprudence, 2nd Edn., Vol.16, Page 129,  

the following definition of conspiracy is given:

"A conspiracy is said to be an agreement between two or  more  persons  to  accomplish  together  a  criminal  or  unlawful act or to achieve by criminal or unlawful means  an  act  not  in  itself  criminal  or  unlawful  ...  The  unlawful  agreement  and  not  its  accomplishment  is  the  gist or essence of the crime of conspiracy."

Lastly, in celebrated case of  Kehar Singh & ors. v.  

State (Delhi Administration) [1988 (3) SCC 609] it was  

observed by Jagannatha Shetty, J.:

"The gist of the offence of conspiracy then lies, not in  doing the act, or effecting the purpose for which the  conspiracy is formed, nor in attempting to do them, nor  in inciting others to do them, but in the forming of the  scheme or agreement between the parties.  Agreement is  essential.  Mere knowledge, or even discussion, of the  plan is not, per se enough" (emphasis ours)

In the celebrated judgment of  State v. Nalini & Ors.  

[1999 (5) SCC 253] S.S.M. Mohd. Quadri, J. relying upon  

89

Van Riper vs. United States (13 F 2d. 961) (2 nd Cir,  

1926) observed:  

"When men enter into an agreement for an unlawful end,  they become ad hoc agents for one another and have made  a partnership in crime."

Other celebrated decisions on the question of conspiracy  

are Yashpal Mittal v. State of Punjab [1977 (4) SCC 540]  

as also the  State of Himachal Pradesh v. Krishan Lal  

Pradhan & Ors. [1987 (2) SCC 17].  It has been held in  

Mohd. Khalid v. State of West Bengal [2002 (7) SCC 334]  

and in Mohammed Usman Mohd. Hussain Maniyar  v. State of  

Maharashatra [1981  (2)  SCC  443] that  the  agreement  

amongst the conspirators can be inferred by necessary  

implication.   All  these  cases  together  came  to  be  

considered in State of NCT of Delhi v. Navjot Sandhu @  

Afsan Guru [2005 (11) SCC 600] where even the celebrated  

judgments of V.C. Shukla vs. State [1980 (2) SCC 665],  

came to be considered wherein it was observed by Fazal  

Ali, J.:

“In  most  cases  it  will  be  difficult  to  get  direct  evidence  of  the  agreement,  but  a  conspiracy  can  be  inferred  even  from  circumstances  giving  rise  to  a  conclusive  or  irresistible  inference  of  an  agreement  between two or more persons to commit an offence."   

90

56. It  is  significant  at  this  stage  to  note  the  

observations in V.C. Shukla (cited supra) wherein it was  

laid that in order to prove criminal conspiracy, there  

must be evidence direct or circumstances to show that  

there was an agreement between two or more persons to  

commit an offence.  It was further held that there must  

be a meeting of minds resulting in ultimate decision  

taken by the conspirators regarding the commission of  

the offence and where the factum of conspiracy is sought  

to be inferred even from circumstances giving rise to a  

conclusive  or  irresistible inference  of  an  agreement  

between  two  or  more  persons  to  commit  an  offence.  

Relying on that, Pasayat, J. in Esher Singh v. State of  

A.P.  [2004 (11) SCC 585] observed that the prosecution  

has to discharge its onus of proving the case against  

the accused beyond reasonable doubt. The circumstances  

in  a  case,  when  taken  together  on  their  face  value,  

should indicate the meeting of the minds between the  

conspirators for the intended object of committing an  

illegal act or an act which is not illegal, by illegal  

means.  A few bits here and a few bits there on which  

the prosecution relies cannot be held to be adequate for  

connecting the accused with the commission of the crime  

of criminal conspiracy.  It has to be shown that all  

91

means adopted and illegal acts done were in furtherance  

of the object of conspiracy hatched.  The circumstances  

relied for the purposes of drawing an inference should  

be prior in point of time than the actual commission of  

the offence in furtherance of the alleged conspiracy.

57. In Esher Singh’s case (cited supra) this Court held  

that the conspiracy was proved between the nine accused.  

A  systematic  role  played  by  each  accused  was  

highlighted.   Pasayat,  J.  in  that  judgment  also  

considered the decision in Bhagwan Swarup Lal Bishan Lal  

etc.etc vs. State of Maharashtra [AIR 1965 SC 682] and  

observed that there is no difference between the mode of  

proof of the offence of conspiracy and that of any other  

offence.  The other decisions in State of Maharashtra v.  

Som Nath Thapa [JT 1996 (4) SC 615]), Ajay Aggarwal v.  

Union of India & Ors. [1993 (3) SCC 609] as also Mohd.  

Usman’s  case (cited  supra) and  Yashpal Mittal  (cited  

supra) were considered in that decision.  The law laid  

down in Ajay Agrawal’s case (cited supra) was reiterated  

and  it  was  held  that  it  is  not  necessary  that  each  

conspirator must know all the details of the scheme nor  

be a participant at every stage.  It is necessary that  

they  should  agree  for  design  or  object  of  the  

92

conspiracy.   Conspiracy  is  conceived  as  having  three  

elements: (1) agreement; (2) between two or more persons  

by whom the agreement is effected; and (3) a criminal  

object,  which  may  be  either  the  ultimate  aim  of  the  

agreement, or may constitute the means, or one of the  

means by which that aim is to be accomplished. These  

decisions were thereafter considered in Navjot Sandhu’s  

case (cited supra).  In K.R. Purushothaman v. State of  

Kerala [2005 (12) SCC 631] a specific observation was  

made to the effect that all conspirators need not take  

active  part  in  the  commission  of  each  and  every  

conspiratorial act but, mere knowledge, even discussion,  

of the plan would not constitute conspiracy.  It was  

further  observed  that  each  one  of  the  circumstances  

should  be  proved  beyond  reasonable  doubt  and  such  

circumstances proved must form a chain of events from  

which  the  only  irresistible  conclusion  is  about  the  

guilt of the accused which can be safely drawn and no  

other  hypothesis  of  the  guilt  is  possible.   We  

respectfully  agree  with  the  law  laid  down  in Navjot  

Sandhu’s case and K.R. Purushothaman’s case.   

58. However, when we test the facts of this case, vis-

à-vis the above parameters it has to be said that what  

93

the prosecution has proved are mere tit-bits of some  

circumstances.  It is not possible to hold that the acts  

done by Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-5)  

Abdul Kareem (A-6) and John Pandian (A-7) along with  

deceased Venkatraman (A-1) and the subsequent act on the  

part of Kumar (A-9), Pavunraj (A-10) and Prince Kumar  

(A-11)  formed  a  chain  of  circumstances  which  

irresistibly  prove  the  offence  of  conspiracy  against  

these  accused  persons.   What  was  actually  done  by  

Sivakumar  (A-2),  Subramaniam  (A-3),  Ubaiadulla  (A-4),  

Yusuf  (A-5)  and  Abdul  Kareem  (A-6)   was  that  they  

travelled together between Coimbatore and Madurai they  

possibly stayed in Jankiram Hotel in their first stay.  

Then there is a missing link as to how they proceeded to  

Tirunelveli  and  further  to  Chennai.   The  prosecution  

alleged that they then contacted John Pandian (A-7) in  

MLA’s hostel in Chennai and met him.  The prosecution  

has drawn complete blank. They have not been able to  

prove that John Pandian actually stayed in MLA’s hostel.  

A mere mention of the name called ‘John Pandian’ in the  

records of the MLA’s hostel would be of no consequence  

unless this John Pandian was identified by somebody at  

the MLA’s hostel.  This undoubtedly was possible but  

that  was  not  done  by  the  investigation  agency.  

94

Therefore, a very important link that Sivakumar (A-2),  

Ubaiadulla  (A-4),  Yusuf  (A-5)  and  Abdul  Kareem  (A-6)  

actually met John Pandian  (A-7) in the MLA’s hostel is  

not  proved.   Once  this  link  is  snapped,  the  whole  

prosecution theory about the conspiracy must fall down.  

Even if it is presumed that these four persons were sent  

by Venkatraman (A-1) to contact John Pandian (A-7) there  

is absolutely no evidence that Venkatraman (A-1) in any  

manner knew about John Pandian or he wanted to contact  

him and, therefore, he sent Sivakumar (A-2) who took the  

help of Ubaiadulla (A-4), Yusuf (A-5) and Abdul Kareem  

(A-6) to contact John Pandian.   

59. Similar is the story regarding the stay of these  

accused  persons  at  Blue  Star  Hotel.   The  staff  in  

Jankiram Hotel and the Blue Star Hotel could have been  

asked to identify these four persons that they at least  

stayed on relevant dates.  That was also not done.  Shri  

Ramamoorthy  urged  very  earnestly  that  there  was  no  

explanation given by these accused persons as to why  

they travelled together from Coimbatore to Madurai and  

from Chennai to Coimbatore.  Now, there is no question  

of these explanations because in the first place it was  

not proved at all that these persons actually travelled.  

95

Even if we presume that they did travel together, that  

by itself reaches the prosecution nowhere. They may have  

hundred  other  purposes  for  travelling.   A  mere  non-

explanation as to why the accused persons made those  

travels by itself will not create a piece of evidence  

against  these  accused  persons  though  that  may  be  

relevant  in  consideration  of  their  participation.  

Further, even if it is presumed that from these accused  

persons money was discovered there is nothing on record  

that the money was given by Venkatraman (A-1) to accused  

No.2, Sivakumar and through him to all the other accused  

persons.   In  fact,  the  prosecution  was  extremely  

confused as to how much money was said to have been  

agreed to be paid for the murder of Vivekanadan and as  

to how much money was distributed.  All these things  

completely shatter the case of conspiracy at least in so  

far as the Sivakumar (A-2), Ubaiadulla (A-4), Yusuf (A-

5) and Abdul Kareem (A-6) and John Pandian (A-7) are  

concerned.   

60. We have already commented on the telephonic calls  

allegedly made.  There also the prosecution has drawn  

complete blank.  Under the circumstances, it is very  

difficult to hold that Sivakumar (A-2), Ubaiadulla (A-

96

4), Yusuf (A-5) and Abdul Kareem (A-6) and John Pandian  

(A-7) were the conspirators.  They have to be given the  

benefit of about for that purpose.  It is undoubtedly  

true that Sivakumar (A-2) who was a mere office boy was  

shown with the amount of Rs.1 lakh carrying with him.  

Now, we fail to follow as to why Sivakumar (A-2) keep on  

parading himself with Rs.2 lakh and how is it that on  

that occasion was caught along with Rs. 1 lakh.  That is  

apart from the fact that Sivakumar (A-2) has tried to  

give an explanation that it was his father’s money who  

had received the same as his retiral benefits.  We are  

not much on the explanation, as in our opinion, the mere  

possession of a lakh of rupees on his person would not  

take the theory of conspiracy any further.  There is  

another difficulty in the way of prosecution in this  

case.  That is the acquittal ordered by the Division  

Bench  of  Ganesan  (A-8)  who  was  the  taxi  driver  from  

whose  taxi  the  photograph  of  Vivekanandan  along  with  

case of Rs.23,000/- was seized.  Unfortunately for the  

prosecution, the State has not chosen to challenge that  

acquittal with the result that a very important link in  

the conspiracy is snapped.

97

61. To summarize, therefore, we hold Kumar (A-9) and  

Pavunraj (A-10) guilty and further confirm the judgment  

of the appellate Court convicting them.  We however,  

allow the appeals filed by Sivakumar (A-2), Ubaiadulla  

(A-4),  Yusuf  (A-5)  and  Abdul  Kareem  (A-6)  and  John  

Pandian  (A-7)  giving  them  the  benefit  of  doubt  and  

acquit  them.  They  shall  be  set  to  liberty  forthwith  

unless required in any other case. Since Venkatraman (A-

1) and Prince Kumar (A-11) are reported to be dead, the  

appeals by them are declared to be infructuous.  Before  

parting, we must appreciate the efforts by the State  

counsel Shri Ramamoorthy as also the defence counsel who  

have  painstakingly  taken  us  through  the  voluminous  

record of this case and helped us in appreciating the  

evidence.

          ……………………………..J.      [V.S. Sirpurkar]

   ……………………………..J.     [Cyriac Joseph]

December 3, 2010; New Delhi.

98

99