Alagar @ Valartha Alagar and Bala @ Balamurugan vs State State Vs Veldurai and 8 Others Amuthavanan Vs Veldurai and 2 to 8 omitted 10 and State

Name of

Accused",Charges,Finding,Sentence

Veldurai,"120(B), 120(B) IPC,

25(1-B) Arms Act, 148,

341 r/w. 149, 302 r/w.

120(B) & 149, 302 r/w.

120(B) & 149, 307 r/w.

120(B) & 149,","Found

guilty under

Sec. 25(lB)

(a) Arms

Act.","3 years RI and Rs.

5000/-fine.

Bala @

Balamurugan","120(B),120(B),

148,341,302 [Aladi

Aruna], 302 r/w. 120(B)

& 149,307,","Found

guilty under

341,307,

302 and

302 r/w.

34.","341: One month SI.

302: Death

sentence 302 r/w.

34 : Death

sentence. 307: Ten

years RI.

Alagar @

Valarntha

Alagar","120(B),120(B),

148,341,302 r/w. 120(B)

& 149,302 [Ponraj], 307,","Found

guilty under

341,307,

302 and

302 r/w.

34.","341: One month SI.

302: Death sentenc

302 r/w. 34 : Death

sentence. 307: Ten

years RI.

4.

Arumugam","120(B),120(B), 148,341

r/w. 149,302 r/w. 120(B)

& 149,302 r/w. 120(B)

& 149,307r/w.

120(B)&149,",Not guilty,

Paramasi-

van","120(B),120(B), 147,302

r/w. 120(B) & 149,302

r/w. 120(B) & 149,307

r/w. 120(B) & 149,",Not guilty,

Kannan,"120(B), 212",Not guilty,-

S.Arul

Raja","120(B), 302 r/w. 120(B),

302 r/w. 120(B), 307

r/w. 120(B) & 149,",Not guilty,

Arjunan,212,Not guilty,

Dhanas-

ingh @

Seeni-vasan","25(1), 25(1-AA) Arms

Act,",,

near Alangulam at a place called Seethaparpanallur near the College of Accused No. 7 at Athiyuthu. On coming to know this, Accused No. 7",,,

went to the house of Aladi Aruna and questioned him he is a novice in running educational institutions and as to why he should start College which,,,

resulted in wordy altercation between de-ceased Aladi Aruna and Accused No. 7- S.A. Raja. Accused No. 7 nurtured grudge and animosity,,,

against Aladi Aruna and the animosity further deepened with the inauguration of Einstein''s Engineering College by Aladi Aruna. Even though,",,,

Accused No. 7 was invited for the inauguration of Einstein''s Engineering College, he did not attend the function and he deputed his College",,,

Principal. During August 2004, Aladi Aruna obtained affiliation for his college from Anna University and started admitting the students in their",,,

College.,,,

Anna University granted affiliation to Einstein''s Engineering College on 4.8.2004 [Ex.P35]. On 23.8.2004, Anna University cancelled the",,,

affiliation already accorded to Raja Engineering College [Ex.P36]. After cancellation of affiliation to the College of Accused No. 7, number of",,,

students started deserted Accused No. 7''s College and joined in the new College started by Aladi Aruna. One day, Accused No. 7 spoke to",,,

PW8-Amuthavanan over phone and asked as to how they could admit the students from his College. PW8 replied that they are admitting the,,,

students as per the Rules. Accused No. 7 retorted saying that they would face the consequences for their misdeeds.,,,

Due to animosity, Accused No. 7 decided to eliminate Aladi Aruna and he engaged deceased accused Benny and Accused No. l-Veldurai by",,,

offering them Rs. 5,00,000/- for killing of Aladi Aruna. Accused No. 7 entered into a criminal conspiracy in his College premises on 14.9.2004",,,

and again on 24.12.2004. Accused No. l and deceased accused Benny engaged their men viz., Accused No. 2-Bala @ Balamurugan, Accused",,,

No. 3-Ala-gar @ Valarntha Alagar, Accused No. 4-Arumugam and Accused No. 5-Paramasivan to execute the murder of Aladi Aruna and all of",,,

them met at Courtallam on 28.12.2004 in Sundara Nilayam and worked out the plan to eliminate Aladi Aruna when he used to go for morning,,,

walk.,,,

In pursuance of the conspiracy, on 31.12.2004 when Aladi Aruna, deceased No. 2-Ponraj and PW6-Socrates were on the morning walk on",,,

Nallur Vilakku Puthupatti road at about 7.15 A.M., accused formed themselves into two groups. One group consisting of deceased accused Auto",,,

Baskar, Accused No. 2-Bala @ Balamurugan and Accused No. 3-Alagar @ Valarntha Alagar waiting on the north of Dharmar Thottam and an-",,,

other group consisting Accused No. l-Veldurai, Accused No. 4-Arumugam and deceased accused Benny waiting at the place south of Dharmar",,,

Thottam.,,,

PW23-Aladi Sankaraiah''s son marriage was solemnized on 29.12.2004 and the marriage reception was held in his house at Aladipatti on,,,

30.12.2004 and on his invitation, Aladi Aruna attended the marriage reception function on 30.12.2004 and he left the place at 12.30 noon.",,,

Whenever, Aladi Aruna visited Alangulam, he used to go for morning walk with his friend Ponraj [deceased] and Socrates [PW6]. On",,,

31.12.2004, PW6-Socrates, Aladi Aruna and Ponraj were on their morning walk on Nallur Vilakku-Puthupatti road. At about 7.15 A.M., when",,,

they were proceeding near the land of Dhar-mar, Accused No. 2 and 3 and deceased accused Auto Baskar waylaid them. Auto Baskar took out",,,

a revolver and aimed at Aladi Aruna. At that time, Aladi Aruna walked towards him and told him that anything could be resolved by negotiation.",,,

Auto Baskar holding the revolver did not heed to the advice of Aladi Aruna and fired at him and the shot was misdirected. At the same time,",,,

Accused No. 2 and 3 armed with Aruvals attempted to cut Aladi Aruna and teacher Ponraj tried to ward off the cuts. At that time, Accused No. 2",,,

repeatedly inflicted cut injuries on the back side of the head and neck of Aladi Aruna. Accused No. 3 repeatedly cut on the neck and backside of,,,

Ponraj. Both the injured Aladi Aruna and Ponraj fell down. Accused No. 2 and 3 armed with Aruvals attempted to attack PW6-Socrates and,,,

deceased accused Auto Baskar also ran towards PW6. But PW6 had providentially escaped.,,,

On 31.12.2004 at about 7.15 A.M., PWII- Lakshmanan @ Jeyaraj who was collecting the grass in coconut-cashew grove of one",,,

Chandrasekaran heard whistle sound from the road. When PW11 looked towards west from where the sound came, PW11 saw Accused No. l-",,,

Veldurai and Accused No. 4-Aru-mugam and another person [Benny] then not known to PW11 were wielding Aruvals. Struck with fear, PW11",,,

squatted on the ground and saw all the three persons fleeing the place in a motorcycle.,,,

On 31.12.2004 at about 7.20 A.M., when PW 10-Raghupathy was waiting to board a bus at Nallur Vilakku bus stop, he saw deceased",,,

accused Auto Baskar, Accused No. 2-Bala @ Balamurugan and one tall man all riding on a motorcycle and he saw them coming from Puthu-patti.",,,

PW6-Socrates who escaped from the place returned to the scene of occurrence and saw Aladi Aruna and Ponraj without any movements.,,,

PW6 ran shouting to one Mathivanan''s Petrol Bunk owned by Aladi Aruna which was situated at about one kilometer away from the scene of,,,

occurrence and told about the occurrence to PW7-Vaithialingam, Manager of the Petrol Bunk. PWs.7 and 6 went to the scene of occurrence in",,,

PW7''s TVS-50 vehicle and both of them went to the house of Aladi Aruna and informed PW8-Amuthavanan who is the son of Aladi Aruna at,,,

about 8.00 A.M. PW8 asked PWs.6 and 7 to inform the matter to the relatives of deceased Ponraj and thereafter, to lodge a complaint with the",,,

Police.,,,

PW6-Socrates and PW7-Vaithialin-gam went to Alangulam Police Station at about 8.30 A.M. and statement of PW6 was reduced into,,,

writing [Ex. PI] by PW51-S.I. of Police. In Ex.Pl-Complaint, PW7-Vaithialingam also signed as witness. Based on Ex.Pl-Complaint, case was",,,

registered in Alangulam Police Station Crime No. 847/2004 U/s. 341, 302, 307 IPC and 25(1) of Arms Act and Ex.P69 is the FIR.",,,

On receipt of Ex.P69-FIR, PW52-In-spector of Police, Alangulam Police Station had taken up investigation. Between 9.30 A.M. and 10.00",,,

A.M., PW52 inspected the scene of occurrence and prepared Ex.P2-Observation Mahazar and Ex.P71-Rough Plan. PW52-IO seized M015-",,,

Nokia Cell phone under Ex.P3-Sei-zure Mahazar. Based on the requisition given by PW52-IO, PW45-Police Photographer went to the scene of",,,

occurrence and had taken photographs [M033-se-ries].,,,

On the same day between 10.30 A.M. and 12.00 noon and 12.00 noon to 1.30 P.M., in the presence of panchayatdars witnesses were",,,

examined and inquest was held on the body of Aladi Aruna and Ponraj. Exs. P72 and P73 are the inquest reports of Aladi Aruna and Ponraj,,,

respectively. After inquest, bodies were sent for autopsy through Head Constable 1020. From near the place where the dead body of Aladi Aruna",,,

was lying, PW52-IO recovered M016-bloodstained mud, M017-sample mud, M08-One pair of rubber slippers and some hair stained with",,,

blood, MOl-bloodstained Aruval and M018-handle of the Aruval under Ex.P4-Mahazar. Like wise, from near the place where dead body of",,,

Ponraj was lying, PW52-IO recovered M019-blood-stained mud, MO20-sample mud, M012-One pair of rubber slippers under Ex.P5-",,,

Mahazar.,,,

Based on the requisition from PW52-IO, PW33-Dr.Ramasubbu, Civil Assistant Surgeon and Dr. Abdul Aziz attached to District Head",,,

Quarters Hospital, Tenkasi conducted autopsy on the body of Aladi Aruna and noted the following injuries:-",,,

Clear cut injury 8x4x2 inches on the back of the neck over the hump cutting through the muscles and blood vessels. Blood clots were seen over,,,

the injury.,,,

Clear cut injury 2x1x1 inches over the back of neck on the right side 2 inches below the injury No. l cutting the neck muscles.,,,

Clear cut injury over the back of scalp(occipital region) on the right side cutting through occipital muscles and outer aspect of occipital bone,,,

measuring 3 inches x bone depth.,,,

Clear cut injury over the centre of scalp cutting the parietal bone exposing the brain measuring 6 inches x bone deep. Hemorrhage seen over the,,,

brain.,,,

Cut injury 1 x 1 cm. over the base of front side of neck with clean margin.,,,

After obtaining chemical report, PW33 opined that the death was due to shock and hemorrhage due to multiple injuries sustained by the deceased.",,,

Ex.P26 is the postmortem certificate and Ex.P27 is the final opinion.,,,

PW34-Dr.Syed Sulaiman, attached to District Head Quarters Hospital, Tenkasi and his colleague Dr. Ramakrishnan conducted autopsy on",,,

the body of Ponraj and noted the following injuries:-,,,

An oblique cut injury 26 x 5cm. extending from 2.5cm below and behind the left ear lobe upto back of right ear lobe.,,,

A cut injury 5cm behind the left ear lobe and 1cm below the 1st injury extending and joining with the 1st injury. Depth of,,,

both injuries was along the base of skull cutting across C.l and C.2 Vertebra through inter vertebral space and severing the spinal cord.,,,

A cut injury of 15 x 2cm x skull deep with injury to occipital bone extending 6cm behind upper end of both ear lobes.,,,

A cut injury of 2.5cm x 1cm x skin deep below the right margin of injury No. l.,,,

After obtaining chemical report, PW34 opined that the death was due to shock and hemorrhage due to multiple injuries sustained by the deceased.",,,

Ex.P30 is the postmortem certificate and Ex.P31 is the final opinion.,,,

After post-mortem, M07-Gold ring, M04-Dhoti, M05-Half Sleeve Shirt, M06-Sweater and M039-Banian were recovered from the body of",,,

deceased Aladi Aruna and M09-Pant, MO 10-Half Sleeve Shirt, MO II-Watch, MO40-Banian, M041-Jatti and M042-Waist cord were",,,

recovered from the body of deceased Ponraj under Ex.77-Form 95.,,,

PW52-IO continued with his investigation. On 03.1.2005, A2-Bala @ Balamurugan surrendered himself before the Judicial Magistrate,",,,

Thiruvotriyur and on 10.1.2005, he was produced before the Judicial Magistrate, Tenkasi. On the same day, PW52-IO gave requisition to the",,,

Judicial Magistrate, Tenkasi for police custody and accordingly, police custody of Accused No. 2 was given for three days. Accused No. 2 was",,,

interrogated on 11.1.2005 at about 10.00 A.M. and he had voluntarily given confession statement in the presence of PW13-Robinson and another,,,

witness Mariappan. The admissible portion of the said confession statement [Ex. PIO] led to recovery of M02-Aruval from a thorny bush near,,,

Karumbuliyuthu village under Ex.P8-Mahazar.,,,

On the same day at about 5.30 P.M., Accused No. 2 took PW52-IO to the two wheeler parking shed situated at the basement of one Nainar",,,

Complex in Tirunelveli and Accused No. 2 identified M013-Bajaj Pulsar motorcycle and the same was recovered under Ex.P9-Ma-hazar. On,,,

13.1.2005, Accused No. 2 took PW52-IO and his party men to Courtallam and identified the Bungalow by name Sundara Nilayam near Five",,,

Falls road. In the said Bungalow, PW52-IO prepared Ex.P12-Observation Mahazar and Ex.P79-Rough Plan. On 14.1.2005, PW52-IO sent the",,,

Accused No. 2 to judicial custody. On 17.1.2005, PW52-IO gave requisition to the Judicial Magistrate, Tenkasi to conduct Test identification",,,

parade for Accused No. 2.,,,

From the confession statement of Accused No. 2 and from the statement of other witnesses, PW52-IO came to know the involvement of",,,

Accused No. l to 5 and deceased accused Auto Baskar and Benny were also involved in the double murder.,,,

The Superintendent of Police, Tirunelveli formed eleven special team each headed by Inspector of Police for investigation. On 20.1.2005 at",,,

about 4.00 P.M., PW52-IO arrested Accused No. 4-Arumugam and Accused No. 5-Paramasi-van at Seethaparpanallur who were proceeding",,,

on a motorcycle and interrogated them. Accused No. 4 gave a confession statement which was recorded in the presence of PW20-Iyappan and,,,

one Murugan. Admissible portion of confession statement of Accused No. 4 is Ex.P17. Accused No. 4 handed over MO14-motorcycle [TN-,,,

74X 6617] and M024-Samsung Cell phone which were recovered by the 10 under Ex.P19-Mahazar. Thereafter, Accused No. 4 took the IO",,,

and witnesses to a place called Ramar Koil on Alangulam-Tenkasi road and at his instance M025-Aruval was seized under Ex.P18-Mahazar.,,,

PW49-Chandra Senan, who was working as Inspector of Police, Tenkasi Police Station was also assisting PW52-IO in the investigation of",,,

the case. PW49-In-spector of Police came to know that the split up accused Ravikumar @ Dog Ravi was harboring the accused Auto Baskar.,,,

Further, PW49-Inspector of Police came to know that Accused No. 6-Kannan was harboring Accused No. 3-Alagar @ Valarntha Alagar. On",,,

the receipt of information at about 3.00 P.M. on 19.1.2005, PW49-Inspector*of Police went to Saravana Lodge in Dindigul and found the",,,

accused Ravikumar @ Dog Ravi and deceased accused Auto Baskar in Room No. 204 and he asked them to accompany him in connection with,,,

the double murder case and they also followed him. On the way to Tirunelveli from Dindigul, PW49-Inspector of Police met another Inspector of",,,

Police Ravi who was proceeding from Palani to Tirunelveli along with the arrested Accused No. 3-Alagar @ Valarntha Alagar and Accused No.,,,

6-Kannan.,,,

PW49-Inspector of Police, and another Inspector of Police Ravi along with arrested accused Auto Baskar, Ravikumar @ Dog Ravi, Accused",,,

No. 3-Alagar @ Valarntha Alagar and Accused No. 6-Kannan proceeded to Tirunelveli in one vehicle. On the way, they came to know that from",,,

the arrested accused that the other accused viz., Accused No. l-Veldurai and Benny might be possibly available in a village called Sattupathu",,,

within the limits of Cheranmadevi Police Station. When PW49-Inspector of Police proceeded to Cheranmadevi along with accused Auto Baskar,,,

near Cheranmadevi, deceased accused Auto Baskar told PW49 that he wanted to answer nature''s call. Hence, PW49 took Auto Baskar to",,,

Cheranmadevi Police Station and took him to the Toilet in the first floor. Auto Baskar went to the Toilet and on return from the Toilet fell down,,,

fainting. Immediately, PW49 admitted Auto Baskar in Government Hospital, Cheranmadevi at 1.50 A.M. on 20.1.2005. The Doctor who",,,

examined Auto Baskar declared him dead at 1.55 A.M. PW49-In-spector of Police lodged a complaint regarding the suicide committed by Auto,,,

Baskar and on the strength of the same, case was registered U/s. 174 Cr. P.C. in Cheranmadevi Police Station Crime No. 7/2005. Thereafter,",,,

PW49 took Accused No. 3,6 and Ravikumar @ Dog Ravi and handed them over to PW52-IO who came to Cheranmadevi Police Station at",,,

3.00 P.M.,,,

On being interrogated, Accused No. 3-Alagar @ Valarntha Alagar gave a confession statement which was recorded in the presence of",,,

PW18-Asirvatham and witness Maragathavel. Admissible portion of confession statement of Accused No. 3 [Ex.P13] led to recovery of M021-,,,

Shirt from the bush by the side of a pond in Karumbuliyuthu under Ex.P14-Mahazar. On 20.1.2005, PW52-IO altered the case into U/s.",,,

147,148,120(B), 341, 302, 307, 212 IPC and U/s. 25(l)(a) of Arms Act under Ex.P82-Express report.",,,

On 24.1.2005, PW52-IO gave requisition to the Judicial Magistrate, Tenkasi seeking police custody for Accused No. 3 and 4. Pursuant to",,,

the order of the Court, PW52-IO took Accused No. 3 and 4 one day for police custody. Ex.P15 is the admissible portion of confession statement",,,

of Accused No. 4. On the strength of confession statement of Accused No. 4, Accused No. 3 took M022-Samsung Cell phone and M023-",,,

Nokia Cell phone from the almirah in his house and the same were seized under Ex.P16-Mahazar.,,,

PW47-[Suresh Kumar}, Inspector of Police, Valliyoor was included in the special team constituted by the Superintendent of Police. On",,,

13.1.2005, PW47 came to know the complicity of Accused No. l and deceased accused Benny in the commission of crime and they got",,,

information that Accused No. l and deceased accused Benny were in Ahamedabad city in Gujarat. PW47 and his team members went to,,,

Ahamedabad on 25.1.2005 and requested Ahamedabad City Crime Branch Assistant Commissioner - Narendra Amin to render assistance to,,,

arrest the accused. PW47 received intelligence information that Accused No. l and other deceased accused Benny were staying in Flat No. 44,,,

44/B/9 in Vaikunth Apartment at Marti Nagar in Ahamedabad City and the said Flat belonged to one Maya Thevar.,,,

On the night of 25.1.2005, Gujarat Police party under the leadership of Assistant Commissioner of Police Narendra Amin went to the said",,,

Apartment at the fourth floor along with them, PW41-Baroot who was the Inspector of Police, City Crime Branch, Ahamedabad also",,,

accompanied. PW41 knocked the door of the said Apartment and the door was opened by Maya Thevar. After introducing themselves to the said,,,

Maya Thevar, PW41 rushed into the said house and at that time Accused No. l and deceased accused Benny came to the hall from the room and",,,

Accused No. l attempted to give a slip, but was apprehended by the Police. PW41 arrested Accused No. l at about 1.00 A.M. on the early",,,

morning on 26.1.2005. On search Accused No. l was found in possession of M029-Country made revolver and three cartridges [MOs.32 and,,,

31]. Accused No. l was also having cash of Rs. 10,200/- [M036-series]. While PW47 seized the case properties, the deceased accused Benny",,,

went into the bath room in the said floor and he was chased by the Assistant Commissioner of Police Narendra Amin and PW41-Inspec-tor of,,,

Police. Deceased accused Benny put something in his mouth [cyanide poison]. On search Benny was found in pos-session of M03-revolver and,,,

MO30-Cartridges numbering in two, M037-Samsung Cell phone and M038-currency notes of Rs. 500/- denominations was also recovered from",,,

the possession of Benny.,,,

As accused Benny consumed cyanide poison, PWs.41 and 47-Inspector of Police and their party immediately shifted accused Benny and",,,

Accused No. l to a nearby hospital viz., L.G. Hospital and they were admitted in the said hospital at 1.30 A.M. Despite treatment, at about 2.15",,,

A.M. on 26.1.2005, accused Benny died. PW47-Inspector of Police informed the same to PW52-IO. PW47-Inspector of Police went to",,,

Ahamedabad City Crime Branch and from there he went to Vatwa Police Station at about 6.00 A.M. and gave complaint regarding death of,,,

accused Benny. On the basis of complaint, Inspector of Police, Vatwa Police station registered a case in A.D. No. 11/2005.",,,

PW29-Gaurav Prajapati was working as Revenue Divisional Officer/Sub-Divisional Magistrate in the City of Ahamedabad. PW46-Solanki,,,

was working as Deputy Tahsildar/Executive Magistrate in Ahamedabad City. On 26.1.2005 at about 7.15 A.M., PW46-Deputy",,,

Tahsildar/Executive Magistrate received written requisition from L.G. Hospital requesting him to record dying declaration from Accused No. l-,,,

Veldurai. PW46 went to L.G. Hospital at 8.20 A.M. and saw Accused No. l in I.C.U. Ward. At about 9.45 A.M., he informed PW29-Gaurav",,,

Prajapati regarding inquest to be held on the body of Benny. PW29 arrived in the hospital at about 10.15 A.M. As Accused No. l did not know,,,

either Gujarati or Hindi or English, PW46 advised the Hospital authorities and the Police officials present there to arrange for a Translator and",,,

accordingly arranged PW30-Venkateswaran as a Translator. PW30 came to the hospital at about 10.15 A.M. PW46 recorded dying declaration,,,

given by Accused No. l with the help of PW30 who translated the statement. Ex. P22 is the dying declaration given by Accused No. l recorded by,,,

PW46. Accused No. l was discharged from the hospital and he was produced before the Magistrate, Ahamedabad at 7.30 P.M. on the same day",,,

26.1.2005 and the said Magistrate issued Ex.P67-transit warrant for Accused No. l till 30.1.2005 at 11.00 A.M. After obtaining transit warrant,,,

for Accused No. l, PW47-Inspector of Police took Accused No. l to Tenkasi and produced him before the Judicial Magistrate, Tenkasi on",,,

28.1.2005 along with his special report Ex.P68. PW47 handed over the case properties recovered from the possession of Accused No. l and,,,

deceased accused Benny to PW52-IO.,,,

On 28.1.2005, PW52-IO gave requisition to the Judicial Magistrate, Tenkasi seeking police custody for Accused No. l and accordingly police",,,

custody was ordered by the Judicial Magistrate, Tenkasi. PW52-IO took Accused No. l into police custody on 28.1.2005. Confession statement",,,

of Accused No. l recorded in the presence of Athimoolam, Tahsildar, Alangulam and PW12-VAO led to recovery of MOs.26 and 27-Aruvals",,,

hidden in a bush behind PVT Mill on Shencottah-Puliyarai road which were recovered under Ex. P7-Mahazar.,,,

Accused No. l was interrogated by PW52-IO in Alangulam Police Station. PW52 came to know through investigation that the murder,,,

occurrence was due to the instigation of A7- S.A. Raja. Accordingly, PW50-Inspector of Police, Thisaiyanvilai to arrest Accused No. 7.",,,

Accordingly, PW50-Inspector of Police arrested Accused No. 7 in the premises of Jeyamatha Engineering College in Aralvoimozhi and handed",,,

over him to PW52-IO on 30.1.2005. PW52-IO sent Accused No. l-Veldurai and Accused No. 7- S.A. Raja to judicial custody.,,,

PW44-District Munsif-cum-Judicial Magistrate, Shencottah conducted Test Identification Parade in respect of Accused No. 2 on 20.1.2005.",,,

During Test Identification Parade, PW6-Socrates identified Accused No. 2-Bala @ Balamurugan and Ex.P54 is the Test Identification Parade",,,

report held in respect of Accused No. 2. Again on 01.2.2005 as per the requisition from PW52-IO, PW44-DM-cum-JM held Test Identification",,,

Parade in respect of Accused No. 3 in which PW6-Socrates and PW 10-Raghupathi separately identified Accused No. 3-Ala-gar @ Valarntha,,,

Alagar and Ex.P56 is the Test Identification Parade Report in respect of Accused No. 3.,,,

PW52-IO continued with the investigation and examined the other witnesses. PW52 noticed that due to language problem, some mistakes",,,

have been crept in Sec. 161 Cr. P.C. Statements recorded from the witnesses from Gujarat. By mistake, PW52-IO has stated that statement to",,,

the effect that as if PW29 has recorded dying declaration of Accused No. l instead of saying that PW46 recorded dying declaration of Accused,,,

No. l.,,,

On 05.3.2005, PW52-IO arrested Accused No. 8-Arjunan at Enthanallur bus stop and Accused No. 8 was remanded to judicial custody.",,,

On 08.3.2005, Accused No. 9-Dhanasingh @ Seenivasan was arrested and his confession statement led to recovery of M028-Reliance Cell",,,

phone under Ex.P21-Mahazar. Accused No. 9 was also sent to judicial custody.,,,

Seized material objects were sent for chemical analysis. Ex.P44 is the Biology report and Exs.P45 and 46 are the Serology reports. Country,,,

made revolver and cartridges were sent for examination by Ballistic Expert. Ex.P39 is the Ballistic Expert Report.,,,

PW48-then District Collector, Tirunelveli District has accorded sanction [Ex.P50] for prosecution of Accused No. l, deceased accused-Auto",,,

Baskar, Benny and Dhanasingh @ Seenivasan [A9] U/s. 39 of Arms Act for prosecuting them for the offence punishable U/s. 25 (1) (b) (a) read",,,

with Sec. 3 of Arms Act. After receipt of chemical analysis report and after completion of due investigation and upon receipt of sanction order,",,,

PW52-IO filed final report against the accused U/s. 147, 148, 341, 212, 302, 307,120(B) r/w. 149 IPC and Sec. 25(l)(a), 25(l)(B)(a), 25(1) (1-",,,

A) of Arms Act on 31.3.2005.,,,

To prove the Charges against the accused, in the trial court prosecution examined PWs.l to 52. Exs.Pl to P97 and MOs. 1 to 42 were",,,

marked. Ex. Cl was marked during cross examination of prosecution witness. Accused were questioned U/s. 313 Cr. P.C. about the incriminating,,,

evidence and circumstance. Denying all of them during Sec. 313 Cr. P.C. questioning -,,,

Accused No. l- Veldurai has stated that he was arrested by the Inspector of Police, Ahamedabad even 10 days prior to the alleged date of arrest",,,

and that signatures were obtained from him on blank papers;,,,

Accused No. 2-Bala @ Balamurugan has stated that since Police searching him, he surrendered himself before the Court and false case has been",,,

foisted against him;,,,

Accused No. 3-Alagar @ Valarntha Ala-gar has stated that he has no connection with the offence and false case has been foisted against him;,,,

Accused No. 4-Arumugam has stated that he has no connection with the offence and false case has been foisted against him.,,,

Accused No. 7- S.A. Raja has stated that immediately after the orders of cancellation of affiliation of his college, they filed Writ Petition before the",,,

High Court and obtained Stay order. Accused No. 7 further stated that he was suffering from heart ailment and he was undergoing treatment and,,,

therefore, he could not attend the inaugural function of Einstein''s Engineering College and therefore, he deputed his College Principal to attend the",,,

function. Accused No. 7 has further stated that he underwent heart surgery even in October 2002 and thereafter, he has handed over the",,,

administration of his colleges to his son and accordingly, Engineering college at Athiyuthu was managed by his own son and that he has nothing to",,,

do with the administration of Sardar Raja Engineering college and that a false case has been foisted against him.,,,

Upon consideration of evidence and observing that the so called irregularities and omissions on the part of Investigating Officer do not cause,,,

any dent in the case of prosecution, learned Sessions Judge inter alia held as follows:-",,,

Accused No. 7- S.A. Raja nurturing enmity against deceased No. l-Aladi Aruna and that prosecution has proved the enmity.,,,

Even though, prosecution has proved enmity, prosecution has not established that Accused No. 7 conspired with Accused No. l and other",,,

accused to eliminate Aladi Aruna and the conspiracy theory propounded by the prosecution has not been established.,,,

Ex.P22-statement of Accused No. l recorded by PW46 is not admissible in evidence and is hit by Sec. 26 of Indian Evidence Act and that the,,,

same cannot be taken as against Accused No. 7.,,,

Prosecution has proved that Accused No. l was found to be in possession of country made revolver [M029] and MOs.31 & 32-cartridges,,,

without license and found Accused No. l guilty U/s. 25(l)(b)(a) of Arms Act.,,,

So far as the occurrence, trial court held that PW6 is a reliable witness and that his evidence draws support from the testimony of PW10 who is",,,

waiting at Nallur Villaku bus stop and on those findings held that Accused No .2 and 3 guilty of causing death of deceased Aladi Aruna and,,,

Ponraj.,,,

Murder was committed in an extremely brutal, grotesque, diabolical and dastardly manner and that both deceased were unarmed, defenseless and",,,

hapless.,,,

Observing that the Aggravating circumstances overwhelmingly supersede the mitigating circumstance, the learned Sessions Judge imposed death",,,

sentence upon Accused No. 2 and 3.,,,

Mr. N. Mohideen Basha, learned counsel for the Accused No. 2 [Appellant in C.A. No. 237/2008] raised the following contentions:-",,,

Evidence of PWs.6 and 10 are unreliable and while so, it would be unsafe to base the conviction upon the evidence.",,,

Evidence of PW6 is beset with inconsistencies and contradictions.,,,

PW6 has not stated about the gun shot injuries caused to Aladi Aruna and hence PW6 could not have been an eye-witness to the occurrence.,,,

No reliance could be placed on Test Identification Parade.,,,

In Ex.Pl-Statement, there was no indication as to identification of the assailants while so, identification of Accused No. 2 is not reliable.",,,

Recovery of Cell phone [M015], Aruval [M013] and Aruval Handle [M018] from Accused No. 2 are doubtful.",,,

Ex. P22 does not speak about PW6-Socra-tes.,,,

Name and identification of assailants not stated in Ex.Pl-Statement.,,,

Mr. Shanmuganathan, learned counsel for the Accused No. 3 [Appellant in C.A. No. 209/2008] inter alia raised the following contentions:-",,,

PW6-Socrates could not have been present in the scene of occurrence and PW6 was an implanted witness.,,,

Ex.Pl-Statement does not contain any details as to the identification of the assailants and while so, identification during Test Identification Parade is",,,

not reliable. Unlike, a normal man, Accused No. 3 being 61/2 feet and was of unusual height, he is called Valarntha Alagar and even though,",,,

statement of PW6 u/s 161 Cr. P.C. was recorded four times, he has not given the identity of any of the accused especially Accused No. 3-Alagar",,,

@ Valarntha Alagar.,,,

Test Identification Parade is illegal and not conducted in accordance with the well laid down principles and the same is unacceptable.,,,

PWs.10 and 11 are not reliable witnesses.,,,

Ex. P22 allegedly recorded from Accused No. l is hit by Sec. 26 of Indian Evidence Act and is inadmissible in evidence.,,,

In support of his contention, learned counsel for Accused No. 3 placed reliance upon Vijayan @ Rajan Vs. State of Kerala, ; Amitsingh",,,

Bhikamsing Thakur Vs. State of Maharashtra, ; Bhimappa Chandappa Hosamani and Others Vs. State of Karnataka, ; Smt. Basanti Vs. State of",,,

Himachal Pradesh, ; Kishore Chand Vs. State of Himachal Pradesh, and AIR 2001 SC 1512 [Dhananjaya Reddy v. State of Karnataka].",,,

Challenging the acquittal of Accused No. 4 to 9, State has preferred C.A. No. 270/2008.",,,

Challenging the findings of the trial court, Mr. N. Natarajan, learned Senior Counsel, Special Public Prosecutor for the State contended that",,,

even though PWs.l and 2 and PWs.4 and 5 have turned hostile, by the evidence of PW3-Thenraj and from Ex.P22-dying declaration and other",,,

evidences, prosecution has established the essence of criminal conspiracy which is a meeting of minds. It was further argued that conspiracy is",,,

hatched in secrecy and it may be difficult for the prosecution to adduce direct evidence and the learned Sessions Judge ought to have held that the,,,

evidence and materials on record would clearly show that Accused No. l, 4 and 7 and other accused have come together in the pursuit of the",,,

criminal conspiracy to eliminate Aladi Aruna. Insofar as, Ex.P22, it was further contended that merely because Police were present at the time",,,

when Ex. P22 was recorded from Accused No. l by PW46-Deputy Tahsildar/Executive Magistrate, Accused No. l cannot be said to be in police",,,

custody. Learned Senior Counsel further argued that merely because Accused No. l survived, evidentiary value of Ex. P22 cannot be belittled and",,,

while so, trial court was not right in throwing away Ex. P22 as hit U/s. 26 of Indian Evidence Act. In support of his contention, learned Senior",,,

Counsel placed reliance upon Ramilaben Hasmukhbhai Khristi and Another, Suleman Yakubbhai Khristi Parmar and Dahyabhai Ashabhai Khristi",,,

Parmar and Others Vs. State of Gujarat, and Firozuddin Basheeruddin and Others Vs. State of Kerala, .",,,

Even though, Accused No. l was convicted U/s. 25(l)(B)(a) of Arms Act, he has not preferred any appeal against the verdict of conviction.",,,

Accused No. l was shown as first respondent in C.A. No. 270/2008 preferred by the State [appeal against acquittal]. Since, Accused No. l did",,,

not engaged a counsel and he was stated in prison in connection with other case, we have issued notice to Accused No. l to ascertain whether he",,,

has engaged the counsel or whether any Legal Services is required for him. Notice to Accused No. l was served in Prison and Mrs. V. Jeyarani,",,,

learned counsel entered appearance for Accused No. l.,,,

Learned counsel for Accused No. l submitted that Ex. P22 was rightly discarded by the trial court on the ground that it was hit by Sec. 26 of,,,

Indian Evidence Act and that the finding cannot be said to be perverse. Commenting upon the prosecution for non-production of the original,,,

proceedings of Ex.P22, learned counsel for the Accused No. l further submitted that Ex. P22 cannot be looked into for any purpose.",,,

On behalf of Accused No. 7, Mr. K. Doraisamy, learned Senior Counsel inter alia submitted the following:-",,,

Under Sec .32 of Indian Evidence Act, dying declaration could be received only when it relates to cause of his death. While so, Ex. P22 is in the",,,

nature of confession statement of Accused No. l and therefore, Ex. P22 cannot be looked into against Accused No. l much less against the alleged",,,

conspirator - Accused No. 7.,,,

Even though, prosecution has seized number of Cell phones, absolutely no investigation on that aspect to connect as to whether there was any",,,

contact/call made from one phone to another.,,,

Absolutely, no material was produced to connect Accused No. 7- S.A. Raja with the commission of offence.",,,

Accused No. 7 was arrested nearly one month after the occurrence i.e. on 30.1.2005 and only after the arrest of Accused No. 7 witnesses came,,,

forward to speak about Accused No. 7 and in such circumstances, no reliance could be placed upon the evidence of those witnesses who have",,,

spoken against Accused No. 7.,,,

Since Accused No. 6-Kannan has not informed the name of his counsel, we have directed Accused No. 6 who was in Jail in Coimbatore to",,,

be produced before us. Accused No. 6 was produced before us. Mr. P. Vijaya Raghavan has entered appearance for Accused No. 6. We have,,,

heard the arguments of Accused No. 6.,,,

We have also heard Mr. S. Jeyakumar, learned counsel for the Accused No. 4 and 5 and Mr. R. Ramasamy, learned counsel for the Accused",,,

No. 8.,,,

Since Accused No. 9-Dhanasingh @ Seenivasan has not appeared nor engaged counsel. Based on the memo filed by the prosecution, case",,,

against Accused No. 9 was split up.,,,

Learned Sessions Judge discussed the case of prosecution on three aspects:- (i) motive; (ii) conspiracy; and (iii) commission of the crime. We,,,

deem it fit to analyse the evidence and consider the arguments both in the appeal against conviction and the appeal against acquittal on the,,,

following aspects:-,,,

Motive.,,,

Conspiracy.,,,

14.12.2004; 24.12.2004 and 28.12.2004.,,,

Evidence of PW23-Murugan [Hardware Seller].,,,

Evidence of PWII- Lakshmanan @ Jeyaraj as to the presence of Accused No. l, 4 and deceased accused-Benny in the scene of occurrence.",,,

Ex. P22 recorded from Accused No. l.,,,

Occurrence,,,

Evidence of eye-witness - PW6 [Socrates].,,,

Overt act of Accused No. 2 and 3 and deceased accused-Auto Baskar.,,,

Evidence of PW 10-Raghupathy.,,,

Subsequent conduct of Accused No. 2 and 3 and arrest, confession and recovery.",,,

Evidence of PWII- Lakshmanan @ Jeyaraj as to the presence of Accused No. l, 4, 7 and deceased accused-Benny close by to the scene of",,,

occurrence.,,,

Subsequent conduct of Accused No. 1,4 and deceased accused-Benny and arrest, confession and recovery.",,,

MOTIVE:-,,,

Hardly any action without motive. Every criminal act is done with motive. Case of prosecution is that Accused No. 7- S.A. Raja had deepseated,,,

enmity with deceased No. l-Aladi Aruna in running Engineering College and that students of Accused No. 7''s college left his Institution and joined,,,

the college started by Aladi Aruna who was Ex. Law Minister.,,,

Accused No. 7 was running several Educational Institutions in the Districts -Tirunelveli and Kanyakumari. Accused No. 7 started Sardar Raja,,,

Engineering College at Athiyuthu, Alangulam. Deceased No. l-Aladi Aruna helped Accused No. 7 to get affiliation for the said Engineering",,,

College. Subsequently, during the year 2002, Aladi Aruna himself has started constructing a college in Seethaparpanallur and Accused No. 7",,,

asked Aladi Aruna to stop construction of the college which then resulted in wordy altercation.,,,

PWs.l and 2 were examined to show that Accused No. 7 went to the house of Aladi Aruna in 2002 and questioned him regarding his intention,,,

to start a college. Later, in 2004 there was a wordy altercation between them and that there was students'' demonstration in front of Accused No.",,,

7''s college on 13.9.2004. Both PWs.l and 2 have not supported the case of prosecution and they have turned hostile. Earlier, statements of PWs.l",,,

and 2 U/s. 164 (5) Cr. P.C. was recorded by the Judicial Magistrate, Shencottah [Ex.P59 and 60]. As rightly held by the trial court even though,",,,

statements of PWs.l and 2 were recorded U/s. 164 (5) Cr. P.C, those statements [Exs.P59& 60] cannot be used as substantive evidence.",,,

Though, PWs.l and 2 have turned hostile, prosecution has adduced other evidence proving that there was hatred and enmity between the",,,

deceased Aladi Aruna and Accused No. 7 in running Educational Institutions. PW7-Vaithialin-gam who is an employee under Aladi Aruna has,,,

spoken about starting of new college by Aladi Aruna near the college of Accused No. 7 and number of complaints were sent against Accused No.,,,

7''s college and Accused No. 7 felt that it might be the handy work of Aladi Aruna and that Accused No. 7 was nurturing animosity against,,,

deceased Aladi Aruna.,,,

PW8-Amuthavanan, who is none other than the son of Aladi Aruna and Principal/Correspondent of Einstein''s Engineering College started by",,,

Aladi Aruna. In his evidence, PW8 has deposed that in the year 2002, his father started constructing a college and at that time, Accused No. 7",,,

came to their house in Alangulam and spoke to his father and asked his father to stop constructing a new college as it would affect Accused No.,,,

7''s college. PW8 had also stated that Accused No. 7 told his father Aladi Aruna that he is novice in running Educational Institutions and that Aladi,,,

Aruna retorted saying that ""if an outsider like Accused No. 7 would start an Engineering College, why not he in his native place...."". PW8 had also",,,

spoken about the grant of affiliation to their college and cancellation of affiliation to Accused No. 7''s college in or about the same time and,,,

students from Accused No. 7''s college left the college and joined Einstein''s Engineering College started by Aladi Aruna. PW8 would further,,,

depose that Accused No. 7 spoke over phone to PW8 and angrily asked PW8 as to how they could admit his college students and Accused No.,,,

7 told PW8 that for their action, they would have to face dire consequences.",,,

Evidence of PW8 was assailed contending that he is the son of the deceased Aladi Aruna and that he is inimical towards Accused No. 7 and is,,,

interested in securing conviction of Accused No. 7 and therefore, no reliance could be placed upon the evidence of PW8. A close relation who is",,,

a natural witness cannot merely be disbelieved on the ground that he is related to the deceased. Evidence of related witness will have to be,,,

analysed carefully. After careful assessment of evidence, PW8''s evidence was found acceptable by the trial court. Being the son of deceased",,,

Aladi Aruna, PW8 would be competent to speak of the wordy altercation between his father and Accused No. 7 and also as to how Accused",,,

No. 7 called him over phone questioning PW8 regarding admission of students. PW8 being a natural witness cannot be regarded as an interested,,,

witness.,,,

PW9-Joseph Thangam had deposed that construction of Engineering College by Aladi Aruna was not to the liking of Accused No. 7- S.A.,,,

Raja. PW6-Socrates, friend of Aladi Aruna used to accompany Aladi Aruna on his morning walk. In his evidence, PW6-Socrates also deposed",,,

that Aladi Aruna used to tell him as to how Accused No. 7 developed jealousy against starting of college by Aladi Aruna.,,,

PW9 has referred to the students demonstration in front of Accused No. 7''s college on 13.9.2004. PW9 has stated that on 13.9.2004, he",,,

along with one Popular Chelladurai was proceeding to Pavoorchatram in a motorcycle and at that time, students of Accused No. 7''s college were",,,

staging demonstration in front of the college and that Accused No. 7 and other Professors were talking with the protesting students. PW9 has,,,

further stated that his enquired Accused No. 7 as to what was the problem and that Accused No. 7 told him that Aladi Aruna is responsible for,,,

cancellation of affiliation to his college and that he would not leave Aladi Aruna.,,,

The relevant portion of evidence of PW9 reads as under:-,,,

PW38-Balakrishnan, Assistant Registrar who was the Chief Superintendent in Anna University has spoken about the grant of temporary",,,

recognition and also cancellation of affiliation to four Engineering Colleges viz., (l)Sardar Raja Engineering College; (2)The Rajas Engineering",,,

College; (3)Josh Kiresh Engineering College and (4) Jeya Madha Engineering College. On 04.8.2004, Anna University granted affiliation to",,,

Einstein''s Engineering College [Ex.P35]. In or about the same time, as per Ex.P36 dated 23.8.2004, the provisional affiliation granted to Accused",,,

No. 7''s college was cancelled by Anna University. In Ex.P36, it is stated that number of irregularities had been noticed in the admission of students",,,

by Sardar Raja Engineering College and that show cause notice was issued to withdraw ""affiliation and why admission should not be stopped for",,,

the academic year 2004-2005, 2005-2006, 2006-2007 to all the courses"". The Principal of Sardar Raja Engineering College and Chairman have",,,

submitted their explanation. Thereafter, based on the recommendation of the Committee, University has decided to suspend the affiliation of all",,,

courses and stop admission including lateral entry for the courses at Accused No. 7''s college for the academic year 2004-2005, 2005-2006,",,,

2006-2007. By Ex.P36 [dated 23.8.2004], the College Management of Sardar Raja Engineering College was informed not to admit the students",,,

including lateral entry to the courses etc.,,,

PW21-Murugan, a student of Einstein''s Engineering College has stated that after completing his plus two, he applied admission in S.A. Raja",,,

Engineering College in the year j>004-2005 and that he was admitted in B.E. Mechanical Engineering and he paid Rs. 10,000/- towards fees and",,,

classes did not commence in that college whereas classes commenced in other colleges. PW21 further deposed that he came to know through,,,

Internet that the recognition granted to Accused No. 7''s college was cancelled by the University and that he got back the documents and the,,,

amount from the said college and joined in Einstein''s Engineering College and like him 30 other students left S.A. Raja''s Engineering College and,,,

joined in Einstein''s Engineering College. Evidence of PW21 would clearly show that PW21 and other students came out of Accused No. 7''s,,,

college and joined in Einstein''s Engineering College started by Aladi Aruna.,,,

During questioning U/s. 313 Cr. P.C, Accused No. 7 has stated that Writ Petition was filed before the High Court and they had obtained stay",,,

of Ex.P36-cancel-lation of affiliation. Obtaining of stay was also elicited during cross examination of PW38-Chief Superintendent of Anna,,,

University.,,,

Accepting the evidence of PWs.6, 7, 8 and 9, learned Sessions Judge held that prosecution has proved that Accused No. 7 was nurturing",,,

hatred and animosity towards Aladi Aruna. Learned Sessions Judge, also observed that Accused No. 7 once friend of Aladi Aruna turned as foe",,,

and nurtured animosity. But the learned Sessions Judge held that animosity of Accused No. 7 could not have led to the conspiracy to eliminate,,,

Aladi Aruna. To arrive at such a finding, learned Sessions Judge referred to the answers of Accused No. 7 during 313 Cr. P.C. questioning and",,,

the evidence of PW38 regarding obtaining of stay from the High Court and that stay was made absolute and admission to Accused No. 7''s,,,

college went on as usual without any interruption.,,,

In his cross examination, PW21 has stated that he joined in Einstein''s Engineering College in 2005. Laying emphasis upon the answer elicited",,,

from PW21, learned Sessions Judge held that PW21 has completed his plus two in 2004-2005 and he must have joined in S.A. Raja''s",,,

Engineering College only after June 2005 and thereafter, only during 2005-2006, PW21 might have joined in Einstein''s Engineering College [Vide",,,

a Para 70 of trial court Judgment].,,,

The reasoning of the learned Sessions Judge in Para 70 is perverse and misreading of evidence of PW21 and PW38. As seen from the,,,

evidence of PW21, he applied to S.A. Raja''s Engineering College for the academic year 2004-2005 as is from the following:-",,,

The above evidence of PW21 was sought to be mis-interpreted saying that PW21 must have completed plus two in the academic year ending,,,

2005 and only during the month of June 2005 or thereafter,",,,

PW21 might have joined in the said college. Evidence of PW21 was sought to be diluted by the learned Sessions Judge observing as under:-,,,

...He would say in his examination in chief that he completed his 12th standard in the academic year 2004-2005 and joined in S.A. Raja,,,

Engineering College in B.E. Mechanical Engineering. If so, only during the month of June or thereafter only during the academic year 2005-2006",,,

P.W.21 might have joined in the said College. Whereas the occurrence itself in this case was on 31.12,2004....",,,

Learned Sessions Judge proceeded under misconception that PW21-Muru-gan has completed plus two only in 2005 and that he must have,,,

applied for joining Accused No. 7''s college either during the month of June 2005 or thereafter. In his evidence, PW21 has categorically stated that",,,

even though, the other colleges were opened, Accused No. 7''s college was not opened. After June 2005, there would have been no impediment",,,

for opening the college because of stay was obtained. Even, PW38 would say that for the academic year 2005-2006, the admission continued as",,,

usual. We find that there is misreading of evidence of PW21 in saying that he must have joined Accused No. 7''s college only in June 2005 or,,,

thereafter.,,,

Referring to the evidence of PW38, learned Sessions Judge sought to dilute the animosity and the evidence adduced by the prosecution to",,,

prove the motive. Of course, in his evidence, PW38 has stated that Accused No. 7''s College Management obtained stay of Ex.P36 and after",,,

obtaining stay, admission continued as usual. Referring to the evidence of PW38, learned Sessions Judge held that because admission continued as",,,

usual, Accused No. 7 could not have possibly entered into conspiracy in December 2004 to eliminate Aladi Aruna. Learned Sessions Judge has",,,

not kept in view the time of obtaining stay and the steps taken by Anna University to vacate the stay order and only thereafter the stay was made,,,

absolute.,,,

Learned Sessions Judge was swayed by the statement of Accused No. 7 during 313 Cr. P.C. questioning that the College Management was,,,

obtained stay of order of cancellation of affiliation. From the evidence of PW38, several aspects are made clear which in our considered view, the",,,

learned Sessions Judge did not keep in view and erred in brushing aside the various aspects emerge:-,,,

From the evidence of PW38, the following important aspects emerged:-",,,

Only after three months after Ex.P36 dated 23.8.2004 stay was obtained [ Vide evidence of PW38 ]. Probably stay was obtained in the month of,,,

November 2004.,,,

After stay was obtained by Accused No. 7''s college, Anna University had taken steps by filing Petition to vacate the stay.",,,

Though, there is no evidence as to the date of moving of application to vacate stay, probably it must have been around in November - December",,,

2004.,,,

Vacate stay application was dismissed and stay was made absolute. No evidence as to exact on which stay was made absolute. Must be around,,,

and after December 2004.,,,

In his evidence, PW38 has made it clear that only in the academic year 2005-2006, the admission continued as usual and that Government",,,

also allotted its quota of candidates. The relevant portion of evidence of PW38 reads as under:-,,,

Learned Sessions Judge misunderstood the evidence of PW38 and erred in saying that Accused No. 7''s college has obtained stay and that,,,

admission went on as usual.,,,

Stay was obtained three months after Ex.P36 - probably in or about November 2004. In his evidence, PW38 has categorically stated that the",,,

said three months is an important period for admission of students. Stay was obtained only in November 2004 and there was suspension of,,,

affiliation during the important period of three months of admission of students and that Anna University had taken steps to vacate the stay are vital,,,

piece of evidence. In our considered view, it would convincingly prove the deepening animosity of Accused No. 7 and probabilising the conspiracy",,,

in December 2004. Quite possibly, Accused No. 7 was nurturing hatred against deceased No. l-Aladi Aruna that Anna University must have",,,

taken steps for cancellation of affiliation and also for vacating stay at the instance of deceased Aladi Aruna. In our considered view, learned",,,

Sessions Judge erred in brushing aside the various vital aspects which are emerging from the evidence of PW38. Cancellation of affiliation and that,,,

Anna University had taken steps to vacate stay are all in close proximity to the occurrence in December 2004.,,,

We may recapitulate the evidence of PW9-Joseph Thangam that he saw the student staging demonstration in front of Accused No. 7''s college,,,

on 13.9.2004 during which period the affiliation was cancelled. Admittedly, Accused No. 7 was running chain of Educational Institutions in",,,

Tirunelveli and Kanyakumari Districts. Suspension of affiliation to his Engineering College must have angered Accused No. 7. Prosecution has,,,

succeeded in proving animosity of Accused No. 7 towards deceased Aladi Aruna. In our considered view, motive plays a vital role and provides",,,

vital link probabilising that Accused No. 7 entering into a conspiracy to eliminate deceased Aladi Aruna.,,,

In their evidence, PWs.8 and 9 have stated that the other persons were also having grudge against Aladi Aruna One Kattathurai of Thevar",,,

Community was murdered. It is alleged that deceased Aladi Aruna harbored the accused persons therein and it has caused grudge among the,,,

Thevar community people One Karuppusamy Thevar had given a cheating complaint against the deceased Aladi Aruna that he has grabbed his,,,

lands for the construction of college and he had grudge against deceased Aladi Aruna During the assassination of former Prime Minister Rajiv,,,

Gandhi, the petrol bunk belonging to deceased Aladi Aruna was looted by local congress people. Later the assailants were convicted in the",,,

criminal case in that regard and those accused also had grudge over the deceased Aladi Aruna.,,,

During evidence, though other motives against deceased Aladi Aruna was elicited, in our considered view the other motives suggested/elicited",,,

have no proximity to the occurrence in December 2004. Sofaras, the murder of Kattathurai, it was in the year 2001 and has no nexus to the",,,

occurrence in 2004. Prosecution has produced Ex.P91-FIR in Cr. No. 262/2001 of F2-Egmore Police Station regarding murder of Kattadurai on,,,

19.2.2001 in Egmore. Like wise, construction of college by the deceased Aladi Aruna was in the year 2002 and therefore any complaint by",,,

Karuppusamy Thevar must have been in or about 2002 which again has no proximity to the occurrence in 2004. Like wise, the assassination of",,,

Rajiv Gandhi was in the year 1991 and any grudge of local congress people must have in and around that period. Any such grudge of local,,,

congress people about one decade ago cannot be connected to the occurrence in the year 2004.,,,

Though, the other motives were suggested/elicited, we are of the view that the other motives absolutely have no proximity to the occurrence in",,,

December 2004. By the evidence of PWs.6,7,8 and 9 and by the words uttered by Accused No. 7- S.A. Raja, prosecution has succeeded in",,,

showing that Accused No. 7 was having deep-seated animosity towards deceased Aladi Aruna to the extent of eliminating him. The learned,,,

Sessions Judge himself held that ""the prosecution proved enmity between Accused No. 7- S.A. Raja and Aladi Aruna over running educational",,,

college around Alangulam. Such motive provides vital link in the criminal conspiracy.,,,

CONSPIRACY:,,,

To prove conspiracy prosecution adduced evidence that there was meeting of minds on the following three dates:-,,,

(i) On 14.9.2004, when Accused No. 7- S.A. Raja met Accused No. l-Veldurai and deceased accused-Benny at his college and hatched a",,,

conspiracy to eliminate Aladi Aruna; (ii) On 24.12.2004, again in the college of Accused No. 7 in Athiyuthu in which there was conspiracy",,,

between Accused No. 7, Accused No. l and deceased accused-Benny; (iii) On 28.12.2004 at Courtallam in which Accused No. l to 5 and",,,

deceased accused-Auto Baskar and Benny met together and hatched a conspiracy and prepared a plan for murdering Aladi Aruna.,,,

To show that on 14.9.2004, Accused No. 7- S.A. Raja, deceased accused-Benny and his associate-Accused No. l-Veldurai hatched a",,,

conspiracy to kill Aladi Aruna, prosecution has examined PWl-Athiappan and PW2-Paulraj. PWs.l and 2 did not support the prosecution case",,,

and they turned hostile. Earlier on 10.2.2005, statements of PWs.l and 2 U/s. 164(5) Cr. P.C. was recorded by the Judicial Magistrate,",,,

Shenkottah.,,,

On 07.4.2006 when PWs.l and 2 were examined in the Court, they did not support the prosecution case. While they were treated hostile, they",,,

were not confronted with their earlier statements recorded U/s. 164 (5) Cr. P.C. Later, they were recalled by the prosecution and recalling of",,,

PWs.l and 2 went up to the High Court. In Crl. R.C. [MD] No. 816/2007, on 07.1.2008 High Court has permitted the prosecution to recall",,,

PWs.l and 2 for the specific purpose of eliciting certain contradictions from PWs.l and 2 in respect of their earlier statements recorded U/s. 161(3),,,

and 164(5) Cr. P.C. as they have turned hostile. Thereafter, PWs.l and 2 were recalled and confronted with Exs.P59 and P60 statements",,,

recorded U/s. 164 (5) Cr. P.C. Evidence of PWs.l and 2 as it now stands is to the effect that they did not say anything about meeting of Accused,,,

No. 7- S.A. Raja, Accused No. l-Veldurai and deceased accused-Benny on 14.9.2004. When PWs.l and 2 were recalled, they have stated that",,,

earlier they were threatened by the Police not to depose as to what they have seen and hence, they did not depose supporting the prosecution.",,,

Hence, we are of the view that first phase of conspiracy on 14.9.2004 could not be established since (i) PWs.l and 2 have turned hostile; (ii)",,,

Statement of PWs.l and 2 recorded U/s. l64(5) Cr. P.C. cannot be a substantive piece of evidence.,,,

The second limb of conspiracy was on 24.12.2004 in the Chambers of Accused No. 7 in the Engineering College. For proving the second,,,

phase of conspiracy on 24.12.2004, prosecution examined PW3-Thenraja, PW4-Shanmugam and PW5-Antony. PW4-Shanmugam and PW5-",,,

Antony who were examined for the purpose of proving that on 24.12.2004 they heard Accused No. 7- S.A. Raja conversing with Accused No. l-,,,

Veldurai and another person regarding murder of Aladi Aruna and both of them are said to have been over heard the conversation. PWs.4 and 5,,,

have not supported the case of prosecution and turned hostile.,,,

Insofar as, proving the second limb of conspiracy on 24.12.2004, prosecution relies upon evidence of PW3-Thenraj. In his evidence, PW3",,,

has stated that on 24.12.2004, he and his friend Karuppasamy were proceeding to Poolangulam village and at about 11.00 A.M. when they were",,,

nearing S.A. Raja''s college, they felt thirsty and they stopped the vehicle in front of weighing bridge [vilbkil] and were taking tender coconut. At",,,

that time, PW3 saw Accused No. l-Veldurai and another person [deceased accused-Benny] came in a motorcycle from east to west and both",,,

entered into the Engineering college of S.A. Raja and returned from the college some 15 minutes thereafter. In his evidence, PW3 has stated that",,,

he was able to identify Accused No. l and at that time he could not identify the pillion rider. PW3 later identified the pillion rider who had gone with,,,

Accused No. l as deceased accused-Benny. PW3 has identified the deceased accused-Benny as one who accompanied Accused No. l on,,,

24.12.2004 to Accused No. 7''s college and he so identified from the photographs.,,,

Evidence of PW3 that he saw Accused No. l and deceased accused-Benny going inside Accused No. 7''s college and that they came out after,,,

15 minutes is a vital piece of evidence. While so, learned Sessions Judge brushed aside the evidence of PW3 on the grounds:-",,,

College is a place used to be frequented by the public and mere visit of Accused No. l and another person into the college cannot lead to any,,,

inference that there was meeting between Accused No. l and other accused.,,,

There is no evidence to show that Accused No. 7 was in the said college on that date.,,,

On the above reasoning, learned Sessions Judge held that based on the evidence of PW3, the second limb of conspiracy on 24.12.2004 cannot be",,,

said to have been proved by the prosecution.,,,

In our considered view, the trial court did not make a correct approach in analysing the evidence of PW3 which resulted in the improper",,,

rejection of evidence of PW3. The learned Sessions Judge did not at all refer to the evidence of PW3 insofar as identification of deceased,,,

accused-Benny from the photographs. The reasoning of the trial court that evidence of PW3 cannot lead to inference of meeting of minds of,,,

Accused No. 7 with Accused No. l and deceased accused-Benny is perverse. Learned Sessions Judge has not at all referred to the answers of,,,

Accused No. l during 313 Cr. P.C. questioning. When confronted with the evidence of PW3, Accused No. l has simply denied having gone into",,,

Accused No. 7''s college. It is not the case of Accused No. l that he had gone there along with deceased accused-Benny to meet some other,,,

persons. But it was a blunt denial. Absence of any explanation strengthens evidence of PW3.,,,

Likewise, during 313 Cr. P.C. questioning for Question No. 156, Accused No. 7 has stated that he has already handed over the college",,,

administration to his son Jesus Raja and Accused No. 7 denied the evidence of PW3. The plea of Accused No. 7 that he has already handed over,,,

the college administration to his son cannot be countenanced. When the students have left from Accused No. 7''s college, Accused No. 7 called",,,

PW8-Amudhavanan over phone and raised protest as to how PW8 could admit their students in their college. As seen from the evidence of PW9,",,,

on 13.9.2004 when the students were staging protest and demonstration, Accused No. 7- S.A. Raja was trying to pacify them. Learned Sessions",,,

Judge has not adopted a correct approach in analysing the evidence of PW3. As we have pointed out earlier, Accused No. l-Veldurai and",,,

deceased accused-Benny going inside the college of Accused No. 7- S.A. Raja is a vital piece of evidence. It is not as if the evidence of PW3-,,,

Thenraja that he saw Accused No. l and deceased accused-Benny going inside the college of Accused No. 7 stands in isolation. It is coupled with,,,

the evidence and circumstances that Accused No. l-Veldurai, Accused No. 4-Arumugam and deceased accused-Benny were found to be present",,,

very close by to the scene of occurrence on 31.12.2004. The fact remains that after the occurrence, Accused No. l and deceased accused-Benny",,,

jointly fled to Ahamedabad to hide themselves. Learned Sessions Judge has adopted an erroneous approach in analysing the evidence of PW3 in,,,

isolation without keeping in view the subsequent conduct of Accused No. l and deceased accused-Benny.,,,

The learned Sessions Judge brushed aside the evidence of PW3 observing that Accused No. l and deceased accused-Benny going inside,,,

Accused No. 7''s college cannot lead to an inference of conspiracy.,,,

The offence of criminal conspiracy has been defined in Section 120-A IPC. The ingredients of this offence are:- (i) two or more persons; (ii),,,

agreeing (iii) to do an offence. To properly appreciate the conspiracy in this case and the guilt of the persons involved in it, it is necessary that the",,,

object of the conspiracy has to be ascertained from the facts of this case. It is vital according to the Supreme Court, that a court trying the offence",,,

of conspiracy should decide conclusively the object of the conspiracy from the charges made against the accused on the facts of the case. The,,,

object of the conspiracy is the ultimate aim of the conspiracy.,,,

Primacy and secrecy are more characteristics of conspiracy than a loud discussion in a place open to a public view. Of course, prosecution has",,,

examined PWs.4 and 5 who are said to have overheard the conversation between Accused No. 7, Accused No. l and deceased accused-Benny",,,

who have turned hostile. Even PWs.4 and 5 have spoken about the conspiracy which they have over-heard, it would have been only a piece of",,,

evidence. In our considered view, evidence of PW3 that on 24.12.2004 Accused No. l, deceased accused-Benny had gone inside Accused No.",,,

7''s college coupled with the evidence that Accused No. l, 4 and deceased accused-Benny were very close by to the scene of occurrence coupled",,,

with the motive of Accused No. 7 added together would bring out the conspiracy.,,,

Conspiracy at Courtallam on 28.12.2004:-,,,

Case of prosecution is that on 28.12.2004, Accused No. l to 5 and deceased accused-Auto Baskar assembled in Sundara Nilayam, Courtallam",,,

and worked out a detailed plan as to how to murder Aladi Aruna and any other coming in the way. For proving this part of conspiracy,",,,

prosecution has examined PW15-Kasi-pandian who was a watchman in the said Sundara Nilayam. He has stated that he did not know any of the,,,

accused or the conspiracy hatched by them and PW15 was treated hostile. Likewise, PW14-Chelliah who saw the deceased accused-Benny in a",,,

public telephone booth phoning up to the residence of Aladi,,,

Aruna on 29.12.2004 to ascertain presence of Aladi Aruna also turned hostile. Another witness, PW17-Vellaisamy who was examined for the",,,

purpose of proving that some accused came to Courtallam on 29.12.2004 and 30.12.2004 and that they met Accused No. 5-Paramasivan also,,,

not supported the case of prosecution and PW17 was also treated hostile. Because of hostility of PWs.14,15 and 17, prosecution could not bring",,,

home the third phase of conspiracy on 28.12.2004 and that accused stayed at Courtallam from 28.12.2004 to 30.12.2004 chalking out the plan,,,

as to how to carry out the illegal act of committing murder of Aladi Aruna. In our considered view, the hostility of PWs.14,15 and 17 would not",,,

affect the substratum of conspiracy brought home by other evidence and circumstances.,,,

Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of,,,

conspiracy. In a case of conspiracy, the question for consideration is whether all the accused had the intention and did they agree that the crime be",,,

committed.,,,

Observing that conspiracy can be proved by such evidence direct or circumstantial and that evidence of conspiracy requires some kind of,,,

physical manifestation of the crime in Kehar Singh and Others Vs. State (Delhi Administration), , the Supreme Court held as under:-",,,

Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on",,,

evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely,,,

upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire,,,

whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former,,,

does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical",,,

manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is",,,

necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient.,,,

Observing that it is rarely possible to establish a conspiracy by direct evidence, in 1999 SCC [Crl.] 691 [State v. Nalini], the Supreme Court",,,

held as follows:-,,,

Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be",,,

exhaustive of the principles.,,,

u/s 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act,,,

by illegal means. When it is a legal act by illegal means overt act is necessary. Offence of criminal conspiracy is an exception to the general law,,,

where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the,,,

intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did",,,

all the accused have the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some,,,

of the accused merely entertained a wish, howsoever horrendous it may be, that offence be committed.",,,

Acts subsequent to the achieving of the object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the,,,

object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like",,,

giving shelter to an absconder.,,,

Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of",,,

the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.,,,

For the purpose of proving the existence of conspiracy, it is sufficient if there is reasonable ground to believe that two or more persons have",,,

conspired together to do an illegal act or legal act by illegal means.,,,

There is no doubt, conspiracy is hatched in secrecy for which direct evidence would rarely be available. Express agreement need not be",,,

proved; Nor actual meeting of two persons is necessary.,,,

The operation of Sec. 10 of Indian Evidence Act is strictly conditional upon there being a reasonable ground to believe that two or more,,,

persons have conspired together. Though, to establish the charge of conspiracy, there must be an agreement, there need not be proved a direct",,,

meeting or combination nor need the parties to be brought into each other personally or face to face. Agreement may be inferred from,,,

circumstance raising presumption of common concerted plan to carryout the unlawful design. In our considered view, from the evidence of PW3",,,

and other circumstances, the following aspects are reasonable grounds to believe that Accused No. l, deceased accused-Benny have conspired",,,

with Accused No. 7 to eliminate Aladi Aruna On 24.12.2004, Accused No. l and deceased accused-Benny had gone into the college of Accused",,,

No. 7 and returned after 15 minutes. Presence of Accused No. l, Accused No. 4 and deceased accused-Benny on the southern side of place of",,,

occurrence on 31.12.2004. Accused No. l and deceased accused-Benny flew to Gujarat and were apprehended together. Accused Benny,,,

consumed cyanide poison immediately after the arrest and accused-Auto Baskar consumed cyanide poison after arrest while in transit. On the,,,

touchstone of well recognised principles for judging the case of criminal conspiracy, in our considered view by the above evidence and",,,

circumstances, prosecution was able to unfold the case relating to criminal conspiracy between Al-Veldurai and A7- S.A. Raja to eliminate",,,

deceased Aladi Aruna.,,,

Ex.P22-Statement of Accused No. l-Veldurai recorded by PW46- Solangi and its evidentiary value :-,,,

For the purpose of proving conspiracy by Accused No. 7, prosecution also relies upon Ex.P22-dying declaration recorded from Accused No. l",,,

by PW46-Solangi. PW47-Inspector of Police who head one of the special team formed by the District Superintendent of Police in assisting the,,,

investigation. On the tips of information, team headed by PW47-Inspector of Police went to Ahamedabad City in Gujarat and requested for",,,

assistance from Gujarat Police - Assistant Commissioner of Police Narendra Amin on the night of 25.1.2005 I.e. on 26.1.2005 at 1.00 A.M.,",,,

PW47 and PW41-Inspector of Police headed by Assistant Commissioner Narendra Amin went to 4th Floor, Vaigunth Apartment and found",,,

Accused No. l and deceased accused-Benny in the house of Maya Thevar, wife of Rajubhai [PW24]. Accused No. l was arrested by PW47 and",,,

MOs. 29,30,31,32,35 and 36 were recovered from his possession. At that time, other accused-Benny went into the bath room and consumed",,,

cyanide poison. Police team took both Accused No. l and accused-Benny to L.G. Hospital and admitted both of them in the hospital in I.C.U.,,,

Despite treatment, accused-Benny died at about 2.15 A.M. on 26.1.2005. On the strength of the complaint lodged by PW47-Inspector of Police,",,,

a case in A.D. No. 11/2005 was registered in Vatwa Police Station.,,,

As per the requisition from the hospital authorities, PW46- Solangi went to the hospital at 8.20 A.M. and saw Accused No. l- Veldurai",,,

admitted in I.C.U. Ward. After securing assistance of PW30-Venkatesawaran, translator, PW46 recorded dying declaration given by Accused",,,

No. l. Ex. P22 is the original dying declaration in Gujarat language and Ex.P24 is the English translated version of Ex. P22 notarised by PW31-,,,

Daxa I. Vias.,,,

Scathing attack was made on Ex. P22 as to the mode of recording, its admissibility and its evidentiary value as under:-",,,

Number of contradictions as to who recorded Ex.P22-dying declaration.,,,

Ex. P22-dying declaration is not a true and voluntary statement of Accused No. l and he was forced to give the statement.,,,

Accused No. l was hale and healthy and he did not make any attempt to commit suicide and there was no necessity to record his dying,,,

declaration.,,,

In any event, since Accused No. l survived, Ex. P22 could only be taken as a statement recorded in the realm of investigation and is hit by Sec. 26",,,

of Indian Evidence Act.,,,

Contents of Ex.P22, contradicts the case of prosecution.",,,

Countering the arguments, Mr. N. Natarajan, learned Senior Counsel for State submitted that merely because police were present at the time",,,

of recording Ex.P22, Accused No. l cannot be said to be in police custody. Insofar as the point as to the value to be attached to Ex.P22-dying",,,

declaration, learned Senior Counsel would submit that court cannot be too technical in appreciating Ex.P22. It was further argued that merely",,,

because Accused No. l survived, evidentiary value to be attached to Ex. P22 cannot be belittled. It was further argued that the trial court was not",,,

right in throwing away the valuable piece of evidence as Ex.P22-dy-ing declaration is hit U/s. 26 of Indian Evidence Act.,,,

Drawing our attention to the evidence of PW29, PW46 and PW52, Mr. K. Doraisamy, learned Senior Counsel for Accused No. 7 argued",,,

at length pointing out the contradictions as to who recorded Ex.P22-dying declaration of Accused No. l whether it was PW29 or PW46. During,,,

investigation, while PW52-IO interrogated PW29 and PW46, as if PW29-Re venue Divisional Officer/Sub Divisional Magistrate has recorded",,,

dying declaration of Accused No. l. But during evidence, it emerged that only PW46-So-langi recorded the dying declaration. As per the",,,

instruction of PW29-Revenue Divisional Officer, PW46-Executive Magistrate has recorded Ex.P22-dying declaration. PW52-IO has explained",,,

because of language and communication problem, the discrepancy has crept in. The same was also accepted by the trial court. Considering the",,,

consistent evidence that PW46 has recorded Ex.P22-dy-ing declaration, there is no substance in the argument advanced as to the discrepancy",,,

pointed out as to who recorded Ex.P22-dying declaration of Accused No. l.,,,

Recording of Ex.P22-Dying Declaration:-,,,

Much arguments were advanced attacking the arrest of Al-Veldurai and deceased accused-Benny and that Ex. P22 is a stage managed one. It is,,,

pertinent to note that the alleged arrest of Al-Veldurai and deceased accused-Benny was not merely by Tamil Nadu Police. On reaching,,,

Ahamedabad, PW47-Inspector of Police approached Narendra Amin, Assistant Commissioner of Police, Ahamedabad. PW41-Barot, Inspector",,,

of Police, Gujarat team of Police and PW47 formed a team and the team went to 4th floor in Vaikunth Apartment. Assistant Commission of",,,

Police, Narendra Amin also accompanied them to Vaikunth Apartment. On being apprehended, Al-Veldurai attempted to give a slip and a brief",,,

while, special team arrested Al-Veldurai. Accused-Benny went into the bath room and Assistant Commissioner of Police, Narendra Amin had",,,

gone near the bath room, Benny put something [cyanide poison] in his mouth.",,,

101.1 Arguments advanced attacking the arrest is untenable. As we have pointed out earlier, arresting Al-Veldurai and Benny not merely Tamil",,,

Nadu Police was involved but also Gujarat Police. Al-Veldurai and deceased accused-Benny were admitted in L.G. Hospital. After informing,,,

PW52-IO, PW47-Inspector of Police went to Vatwa Police Station and lodged a complaint regarding the occurrence on the night of",,,

25/26.1.2005. Case registered in A.D. No. 11/205 of Vatwa Police Station was at the behest of the Tamil Nadu Police. PW47 went to Vatwa,,,

Police Station and thereafter was with them till the case was transferred to Ahamedabad Crime Branch.,,,

101.2 On 26.1.2005 at 7.15 A.M., from the hospital, PW46-Solangi, Executive Magistrate received requisition for recording dying declaration of",,,

Al-Veldurai who was admitted as inpatient in ICU as MLC 4787. PW46 went to L.G. Hospital at 8.20 A.M. After securing the assistance of,,,

PW30-translator who was conversant both in Tamil and Gujarati, PW46 recorded the dying declaration at 10.15 A.M. and concluded the same at",,,

11.00 A.M. Doctor has also signed in Ex. P22 that Al-Veldurai was in a ''fit mental condition'' to give dying declaration. Learned Sessions Judge,,,

discarded Ex. P22 on the sole ground that Al-Veldurai was in Police custody i.e. in the custody of PW47-Inspector of Police and as such, it is",,,

inadmissible and hit by Sec. 26 of Indian Evidence Act.,,,

101.3 Challenging Ex.P22, it was mainly argued that Sec. 32 (1) of Indian Evidence Act contemplates that the dying declaration is made by a",,,

person dying as to the cause of his death or circumstances of the transaction which resulted in his death and Al-Veldurai was not dying and that he,,,

has not spoken about the cause of his death and therefore, it cannot be a dying declaration. It was further argued that Ex. P22 said to have been",,,

obtained from Al-Veldurai at the hospital is not proved by the prosecution by oral or documentary evidence. It was further argued that even,,,

though, prosecution claims since accused-Benny and Al-Veldurai consumed poison and therefore, there was necessity to record Ex.P22, but no",,,

records produced to that effect that Al-Veldurai also consumed poison.,,,

101.4 It was further argued that neither FIR in A.D. No. 11/2005 nor other documents were produced to prove that Al-Veldurai consumed,,,

poison as that of deceased accused-Benny. The main thrust of arguments of the learned counsel for the accused was that Exs.P22 to P24 were,,,

created by Tamil Nadu Police in connivance with Ahamedabad Police and that Ex. P22 is a stage managed one merely to bring into existence to,,,

record a confession statement under the colour of dying declaration.,,,

101.5 As rightly submitted by the learned Senior Counsel Mr. N. Natarajan, Special Public Prosecutor that statement of Al-Veldurai was not",,,

recorded in a proceeding connected with the case, it was recorded in the course of investigation and enquiry conducted on the death of accused-",,,

Benny and the suspected consuming poison of Al-Veldurai in A.D. No. 11/2005. As rightly submitted by the prosecution, investigating agency of",,,

this case [Tamil Nadu Police] could not have wielded control over either on the accused or on the Gujarat Police. From Tamil Nadu, PW47-",,,

Inspector of Police and two Sub-Inspectors of Police have gone to Gujarat to arrest Al-Veldurai and accused-Benny. PW29-Gaurav Prajapati is,,,

the RDO and PW46-Solangi is the Executive Magistrate/Dy. Tahsildar. We find it too difficult to accept the contention that Tamil Nadu Police,,,

influenced the officials at Gujarat and created Ex.P22.,,,

101.6 As rightly submitted by the prosecution, it is quite improbable that PW47-Inspector of Police quite within a short time influenced the higher",,,

officials in Ahamedabad like Assistant Commissioner of Police Narendra Amin as well as the revenue officials in the rank of Revenue Divisional,,,

Officer [PW29] and Executive Magistrate [PW46]. The Police Officers in Gujarat were only performing their official act. Gujarat Police had,,,

nothing to foist false case against the accused. The arguments advanced by the defence that PW47-Inspector of Police and two Sub-Inspectors of,,,

Police who went to Gujarat to arrest Al-Veldurai and accused-Benny could have influenced the revenue officials as well as Gujarat Police and,,,

stage managed Ex. P22 is highly improbable and unacceptable.,,,

101.7 In his evidence, PW46 has stated that the entire proceeding of recording dying declaration was videographed. On behalf of the accused, it",,,

was argued that while recording Ex.P22-dying declaration, Tamil Nadu Police were present in the hospital and when there was change of",,,

language, production of original videograph would have been the best evidence to show recording of dying declaration and adverse inference is to",,,

be drawn against the prosecution case for non-production of videograph. Since, PW29-RDO, PW46-Executive Magistrate and PW30-translator",,,

have given consistent version as to recording of dying declaration, in our considered view, production of videograph showing recording of Ex. P22",,,

may not be of much relevance. We find force in the contention of the learned Special Public Prosecutor that videograph was not in the possession,,,

of Tamil Nadu Police and the same was a piece of evidence only in A.D. No. 11/2005 of Vatwa Police Station.,,,

101.8 Doctor who endorsed Ex.P-22 as to the mental condition of Al-Veludurai was summoned from Gujarat and Doctor also attended the court,,,

at Tirunelveli on 20.09.2007 and the said Doctor has also signed in the witness register. Later because of the signature in Ex. P22 was found to be,,,

different, the Doctor who attended the court could not be examined. On behalf of the accused, it was contended that there was slip shoddiness in",,,

the investigation and that prosecution was not even aware of the Doctor who endorsed in Ex. P22 and to would only show that Ex. P22 was,,,

recorded in a hurried manner. The above contention cannot be countenanced. Of course, the Doctor summoned from Gujarat and attended court",,,

was a different Doctor who endorsed in Ex. P22 . In our considered view the mistake occurred only because of language and communication,,,

problem which would not in any way affect Ex.P22.,,,

101.9 Arguments were advanced raising objection as to recording of dying declaration by PW46-Executive Magistrate. In his evidence, PW46",,,

has stated that the prevailing practice in Gujarat State is that dying declaration would be recorded by the Executive Magistrate. Unlike, in other",,,

States like Tamil Nadu where dying declarations are recorded by the Judicial Magistrates, in the State of Gujarat the prevailing practice is said to",,,

be that dying declaration would be recorded by the Executive Magistrate. As per the prevailing practice, PW46-Solangi has recorded the dying",,,

declaration of Al-Veldurai who was admitted in ICU at L.G. Hospital.,,,

101.10 In his cross-examination, PW46 has clearly stated that when he went to the hospital, I.V. fluid was being given to Al-Veldurai and that he",,,

was in the ICU. Absolutely, we do not find any reason to doubt the version of responsible officer like PW46-Executive Magistrate.",,,

101.11 PW46 has categorically denied the suggestion that he has obliged the Tamil Nadu Police. PW46 has also categorically denied the,,,

suggestion that at the behest of Tamil Nadu Police purported dying declaration [Ex.P22] was prepared by him in which signature of Al-Veldurai,,,

was later obtained. As we have pointed out earlier, it would have been quite improbable for the Police Inspector like PW47 to influence the higher",,,

officials like PW29-RDO and PW46-Executive Magistrate as well as the Gujarat Police.,,,

101.12 On behalf of the accused, it was mainly argued, if really Al-Veldurai was so admitted in the hospital, the admission, treatment and",,,

discharge records ought to have been produced. It was further argued that no records were produced to that effect and that Al-Veldurai,,,

attempted to commit suicide by consuming poison and FIR in A.D. No. l 1/2005 on the file of Vatwa Police Station was not produced to show the,,,

same.,,,

101.13 On behalf of the prosecution, it was contended that A.D. No. 11/2005 pertains to suicide of accused-Benny and no relevancy in this case",,,

and therefore, the same was not filed. It was further contended that A.D. No. 11 /2005 is part of the record of Gujarat Police and Tamil Nadu",,,

Police had no role in the investigation of suicide of accused-Benny and therefore, the prosecution was not required to produce the proceedings in",,,

A.D. No. 11/2005 in the trial for the murder of deceased Aladi Aruna. Prosecution is not right in contending that FIR in A.D. No. 11/2005 and,,,

other records are not relevant in the present case. We do feel that it would have been better if the prosecution has produced the complaint given,,,

by PW47-Inspector of Police and FIR in A.D. No. 11/2005 of Vatwa Police Station and the related proceedings which would have been the,,,

contemporaneous documents to substantiate the evidence of PW41-Barot, Inspector of Police, PW46-Solangi, Executive Magistrate and PW47-",,,

Suresh Kumar, Inspector of Police.",,,

101.14 It may be the omission on the part of investigation in not filing the FIR and other records in A.D. No. 11/2005. However, non-filing of FIR",,,

and other records in A.D. No. ll /2005 would not in any way dilute the consistent version of PW46-Ex-ecutive Magistrate and PW29-Revenue,,,

Divisional Officer in the circumstances leading to recording of Ex.P22.,,,

101.15 It would be unreasonable to accept the contention that there was confabulation between the Tamil Nadu Police and Gujarat Police and,,,

that they have stage managed the whole thing to bring about Ex.P22. The fact remains that accused-Benny died of consuming cyanide poison,,,

simulating that of Auto Baskar. The contention that Gujarat Police have joined with Tamil Nadu Police to bring about Ex. P22 is a far fetched one.,,,

101.16 There is no rule of law that evidence of Police officials has to be disbelieved on the ground that they are interested in the out come of the,,,

result of the case. Of course, evidence of Police Officials needs to be carefully scrutinized and independently appreciated. Trust only begets trust.",,,

101.17 We cannot overlook the reality that PW47-Inspector of Police along with two S.I. of Police traveled to Gujarat to apprehend Al-Veldurai,,,

and accused-Benny. Both Al-Veldurai and accused-Benny were arrested on the mid-night of 25/26.1.2005. PW47-Inspector of Police and two,,,

other S.I. of Police would not have expected that accused-Benny would consume cyanide, a deadly poison. Immediately, thereafter, Al-Veldurai",,,

and accused-Benny were taken to L.G. Hospital and admitted in ICU. It is the doctor from L.G. Hospital who sent the intimation to PW46 to,,,

record dying declaration of Al-Veldurai. The flow of events would clearly suggest that Tamil Nadu Police was not instrumental in getting the dying,,,

declaration. In the course of events, Ex. P22 was suo-generated and the document on its own came about.",,,

101.18 It is also pertinent to note that PW47-Inspector of Police was not the Investigating Officer. After accused-Benny consumed poison, they",,,

were taken to the hospital in the same vehicle. While so, it would be unreasonable to contend that Gujarat Police colluded with Tamil Nadu Police",,,

in bringing about Ex.P22. As rightly submitted by the prosecution, Ex. P22 was recorded in the natural course of events.",,,

101.19 Evidentiary value of Ex.P22:-,,,

Al-Veldurai from whom Ex.P22-dying declaration was recorded now survived. On behalf of the accused it was contended that as long as the,,,

maker of the statement is alive, it would only remain in the realm of a statement recorded during investigation and therefore, no evidentiary value",,,

could be attached to Ex. P22 terming it as dying declaration.,,,

101.20 It was nextly contended that Ex. P22 does not relate to the death of Al-Veldurai or as to any circumstances leading to the death which,,,

resulted in his death. Mr. K. Doraisamy, learned Senior Counsel for Accused No. 7 contended that the statement which do not relate to cause of",,,

death of maker or to any of the circumstances of the transaction which resulted in his evidence, cannot be termed as dying declaration and no",,,

evidentiary value could be attached to Ex.P22.,,,

101.21 Section 32 (1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his,,,

death comes into question, but its admissibility depends upon one of the two conditions : Either such statement should relate to the cause of his",,,

death or it should relate to any of the circumstances of transaction which resulted in his death. The collocation of the words in Section 32 (1),,,

circumstances of the transaction which resulted in his death"" is apparently of wider amplitude than saying ""circumstances which caused his death"".",,,

There need not necessarily be a direct nexus between ""circumstances"" and ""death"". It is enough if the words spoken by the deceased have",,,

reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement,,,

would also fall within the purview of section 32 (1) of the Evidence Act. In other words, it is not necessary that such circumstance should be",,,

proximate, for, even, distant circumstance can also become admissible under the sub-section, provided it has nexus with the transaction which",,,

resulted in the death. (See Rattan Singh Vs. State of Himachal Pradesh, ).",,,

101.22 Applying the ratio of the above decision, Ex.P22-statement of Al-Veldurai relates to the circumstances of the transaction which resulted in",,,

his attempted suicide or suspected consumption of poison and therefore, Ex. P22 is admissible in evidence like any other dying declaration. Since,",,,

Al-Veldurai survived, no more we need to take Ex. P22 as dying declaration and no further deliberation is required on this score.",,,

101.23 Since Al-Veldurai survived, question arises as to how to take Ex. P22 -whether it can be taken as extra-judicial confession made before",,,

the Executive Magistrate or can it be said to be hit under Sec. 26 of Indian Evidence Act as held by the learned Sessions Judge.,,,

101.24 On behalf of the accused, it was contended that Al-Veldurai was in the police custody and investigation in Cr. No. 847/2004 was already",,,

commenced and therefore, the statement made by Al-Veldurai is hit under Sec. 26 of Indian Evidence Act. Reliance was also placed upon",,,

Zwinglee Ariel Vs. State of Madhya Pradesh, and Ram Singh Vs. Sonia and Others, .",,,

101.25 As per Sec. 26 of Indian Evidence Act, no confession made while in custody of Police Officer is admissible in evidence, unless it is made",,,

in the immediate presence of a Magistrate"". Section 26 of Indian Evidence Act reads as follows:-",,,

Confession by accused while in custody of police not to be proved against him - No confession made by any person whilst he is in the custody,,,

of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.",,,

Explanation- In this section ""Magistrate"" does not include the head of a village discharging magisterial functions in the Presidency of Fort St.",,,

George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 1898 (V",,,

of 1898).,,,

101.26 After referring to number of cases which are not so relevant to the point, learned Sessions Judge simply rejected Ex. P22 on the sole",,,

ground that Al-Veldurai was already arrested and that he was in the custody of Police Officer and hence, statement of Al-Veldurai recorded as",,,

dying declaration is not admissible in evidence. Learned Sessions Judge failed to take note that the statement was given to PW46-Executive,,,

Magistrate as a dying declaration and consequently ""in the immediate presence of a Magistrate"" and the same is admissible in evidence.",,,

101.27 Since Al-Veldurai survived, Ex. P22 can be construed as extra-judicial confession made to PW46-Executive Magistrate. It is pertinent to",,,

point out that Police Officer particularly PW47-Inspec-tor of Police was not in the hospital at the time of recording dying declaration as he had,,,

gone to Vatwa Police Station to lodge a complaint and thereafter with the Vatwa Police Station in transferring the case to Gujarat Crime Branch.,,,

Even though, Al-Veldurai was arrested and in the custody of Police Officer, since Ex. P22 was recorded by the Executive Magistrate, bar under",,,

Sec. 26 of Indian Evidence Act is not attracted.,,,

101.28 In this connection, prosecution has relied upon an unreported decision of Madras High Court in Criminal Appeal No. 662 of 2007 [Viji @",,,

Vijayaraja v. State], wherein it has been held as follows:-",,,

As far as the contention regarding Ex.P6 was concerned, according to the prosecution, PW18, the judicial magistrate, recorded the dying",,,

declaration of the accused since his condition was found to be serious. Since he was alive, the document cannot be termed as a dying declaration.",,,

Ordinarily, it can be taken only as a statement recorded u/s 161 of the Cr. P.C. But the trial court has given treatment to the said document as one",,,

of dying declaration. As rightly pointed out by the learned counsel for the appellant, if it has got to be treated as a judicial confession u/s 164 of Cr.",,,

P.C, not only procedural formalities to be adopted, but also a certificate to be appended by the Magistrate. Both have not been done in the case",,,

on hand, and hence Ex.P6, cannot be considered as a judicial confession. It is true that it is neither a dying declaration nor a judicial confession u/s",,,

But, in the considered opinion of the court, there cannot be any impediment in law to treat the document as an extra judicial confession. In the",,,

instant case, the fact that the accused has given a statement to PW18, the judicial magistrate cannot be disputed. Now, the magistrate has spoken",,,

to the fact that it was the accused who gave the statement. Tine statement has also been recorded. Merely because of the reason, PW18",,,

happened to be a judicial magistrate, it cannot be stated that the document Ex.P6 cannot be treated even as an extra judicial confession. Before",,,

accepting the extra judicial confession, the court has to apply two tests. Firstly, the court has to look into the circumstances under which the",,,

statement was given. Secondly, whether the evidence of the person to whom such a statement was given, has inspired the confidence of the Court.",,,

In the instant case, both the tests if applied, would satisfy the circumstances. In the instant case, both the tests if applied, would satisfy the",,,

circumstances. Under the circumstances, Ex.P6 can be considered as an extra judicial confession made by the accused to PW18 and hence that",,,

has got to be accepted. The above observation squarely applies to the present case and we are of the considered view that Exs.P22 to P24 are,,,

admissible in evidence.,,,

101.29 Learned counsel for Accused No. 3 sought to distinguish the above decision contending that in the said case accused was caught red,,,

handed and that dying declaration was recorded by the Judicial Magistrate and in such circumstances, the statement of accused was taken as",,,

extrajudicial confession. It was further argued that in the said case, accused himself was charged for attempting to commit suicide under Sec. 309",,,

IPC. It was further argued that PW29 and PW46 have not stated anything that Al-Veldurai consumed poison and no charge against him for,,,

attempting to commit suicide. Even though, we are not impressed with the points of distinction urged by the learned counsel for Accused No. 3,",,,

PW46-Executive Magistrate has clearly stated that when he saw Al-Veldurai, he was given treatment in I.C.U. In the State of Gujarat as per the",,,

prevailing practice, dying declarations are recorded by the Executive Magistrate. As such we do not find any factual distinction between the",,,

statement of Al-Veldurai recorded by PW46-Executive Magistrate and the above unreported decision.,,,

101.30 Insofar as confession made to Police Officer, the prohibition must be strictly applied. Of course, Al-Veldurai was arrested and suspected",,,

of consuming poison and admitted in L.G. Hospital in ICU as MLC No. 4787. Accused-Benny was also admitted in the hospital as MLC No.,,,

4786. Inspite of treatment, accused-Benny died at 2.15 A.M. on 26.1.2005. Al-Veldurai suspected of consuming poison must seen his associate",,,

Benny died at 2.15 A.M. Observing all formalities, PW46-Ex-ecutive Magistrate was called to record dying declaration. The main consideration is",,,

that presence of Magistrate and emanating confession statement in his presence. Ex. P22 was made to Magistrate himself. Obviously, confession",,,

made to Magistrate himself is made ""in the immediate presence of a Magistrate"".",,,

101.31 Learned Sessions Judge has neither adverted to the circumstance under which Al-Veldurai was admitted in the hospital and another,,,

circumstance that Al-Veldurai saw his associate Benny died of consuming cyanide poison. Learned Sessions Judge erred in not keeping in view the,,,

observation of formalities in calling PW46-Executive Magistrate and PW46 recording Ex.P22-dying declaration after observing all formalities.,,,

Learned Sessions Judge committed serious and substantial error in saying that Ex. P22 is hit by Sec. 26 of Indian Evidence Act. The admissibility,,,

of confession statement under Sec. 26 of Indian Evidence Act is dependent on whether it was made in the presence of a Magistrate. Learned,,,

Sessions Judge did not keep in view that Ex. P22 was a confession made to a Magistrate himself and that it can be construed as made ""in the",,,

immediate presence of a Magistrate"". The finding of the learned Sessions Judge that Ex. P22 is hit under Sec. 26 of Indian Evidence Act is to be",,,

reversed.,,,

101.32 In Ex.P22, Al-Veldurai has clearly narrated about the conspiracy to kill Aladi Aruna and that Accused No. 7- S.A. Raja, owner of the",,,

College had talked to give Rs. 5 lakhs for doing murder and that he paid Rs. 20,000/- to Al-Veldurai as advance and in that connection, they have",,,

killed Ex-Minister.,,,

101.33 The answers to question Nos. 14 to 16 in Ex. P22 are relevant to be noted:-,,,

Q.14- Because of what reasons you came to Ahmedabad from Tamilnadu,,,

In relation to murder of Ex-Minister Alacu Aruna (DMK), Police of Tamilnadu was searching us. For that I and my friend Binni both went to",,,

Kerala from Tamilnadu, from there to Bangalore then we reached Mumbai and afterwards we both came to Ahmedabad.",,,

Q.15 - Did you have any previous knowledge that police was searching you in that case?,,,

Yes, I instructed ''Auto Baskar'' to kill Ex-Minister and he killed him in that ""Binni"", ""Alagar"" and ""Balamurugan"" this way 4 (four) persons I",,,

instructed to kill Minister, and they did it. In that ""Autobaskar"" committed died after eating cyanide, ""Alagar"" is now in Jail and ""Balamurugan""",,,

appeared before police and is in jail. I and Binni ran away and came to Ahmedabad. In this I am Gang Leader.,,,

Q.16 - For what reason you murdered Ex-Minister?,,,

When Ex-Minister was in power, there was a quarrel between backward and superior. S.A. Raja owns a College and he had talked to give 5",,,

(Five) lakhs for doing murder and he paid 20 thousand rupees to me in advance and in that connection we have killed the Ex-Minister.,,,

101.34 The above statement in Ex. P22 clearly brings home the conspiracy between Accused No. l and Accused No. 7 to commit the murder of,,,

Aladi Aruna.,,,

101.35 In terms of Sec. 30 of Indian Evidence Act before confession statement of accused used against a co-accused, it must appear that the",,,

confession implicates the confessing person substantially to the same extent as it implicates the person against whom it is to be used in the,,,

commission of the offence for which accused are being jointly tried. In Ex.P22, Al-Veldurai not only implicated himself but also clearly stated that",,,

the murder was committed at the behest of Accused No. 7 in pursuance of conspiracy.,,,

101.36 Contending that confession of co-accused is not a substantive evidence against co-accused, on behalf of Accused No. 7, learned Senior",,,

counsel placed reliance upon 1987 LW (Cri) 274'' [Param Hans Yadav and Sadanand Tripathi v. State of Bihar and others]; Preetam Vs. State of,,,

Madhya Pradesh, and (2007) 1 MLJ (Crl) 279 [Valarmathi and others v. State rep. by Inspector of Police, Dharmapuri Police Station,",,,

Dharmapuri District].,,,

101.37 The confession of a co-accused cannot be used as a substantive piece of evidence. In dealing with the confession of a co-accused, the",,,

Court must begin with other evidence produced by the prosecution and after it has formed its opinion as to the quality and effect of that evidence,",,,

then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt. Of course, the confession of a co-accused",,,

cannot be taken as substantive evidence against co-accused.,,,

101.38 But in the instant case, we are dealing with conspiracy where loosened standards prevail in admissibility of evidence. Observing that in",,,

conspiracy trial, loosened standards would prevail, in Firozuddin Basheeruddin and Others Vs. State of Kerala, the Supreme Court held as",,,

follows:-,,,

P.26. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions,",,,

any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each coconspirator. Despite",,,

the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. Thus conspirators are liable on an agency theory for statements of",,,

co-conspirators, just as they are for the overt acts and crimes committed by their confreres.",,,

101.39 Section 10 of Indian Evidence Act lays down that in prosecutions for conspiracy when concert and connection between the persons,,,

charged have been sufficiently established, the statements, acts or declarations of each conspirator, in reference to their common intention are",,,

admissible as evidence against the others.,,,

101.40 In Ex.P22, Al-Veldurai has stated that Accused No. 7- S.A. Raja engaged Al-Veldurai and that he had agreed to give Rs. 5 lakhs for",,,

committing the murder and he paid Rs. 20,000/- to Al-Veldurai and in that connection Al-Veldurai and others killed Ex-Minister Aladi Aruna. His",,,

statement is not only admissible against Al-Veldurai, but also against Accused No. 7- S.A. Raja. Applying the ratio of the decision Firozuddin",,,

Basheeruddin and Others Vs. State of Kerala, , the contents in Ex. P22 is a strong piece of evidence against Accused No. 7- S.A. Raja.",,,

101.41 On behalf of the accused, it was contended that Ex. P22 is to be accepted in to and not in piecemeal. For question No. 17, Al-Veldurai",,,

has stated that Benny stabbed Aladi Aruna and that Auto Baskar has killed Ponraj. In Ex. P22 -Question No. 17 and the answer of Al-Veldurai,,,

reads as under:-,,,

Q.17 - With what you have killed from where you brought it?,,,

We, by bend Choora Binni stabbed him and murdered him. In that two persons were there and the second one was ""Pundraj"". ""Autobaskar"" had",,,

killed him also. He was a friend of ""Aaruna"".",,,

101.42 Laying emphasis upon the answer to question No. 17, on behalf of the accused, it was mainly contended that Ex. P22 is to be accepted in",,,

to and in question No. 17, Al-Veldurai has stated that ''Auto Baskar"" and ''Benny"" killed Aladi Aruna and Ponraj whereas case of prosecution is",,,

that Accused No. 2 and 3 killed Aladi Aruna and Ponraj respectively and therefore, if Ex. P22 is to be accepted, case of prosecution based upon",,,

the evidence of PW6-Socrates is to be thrown away. There is no force in the arguments of the accused advanced on the inconsistencies between,,,

the prosecution case and Ex. P22.,,,

101.43 Insofar as, the actual occurrence is concerned, evidence of eye-witnesses will prevail. That apart on 26.1.2005 at 10.15 A.M. when",,,

Ex.P22-statement was recorded from Al-Veldurai, accused-Benny already died. Al-Veldurai was aware that his associate Auto Baskar also died",,,

while he was apprehended by the Police. As leader of the gang, Al-Veldurai would have deliberately made such a statement saying that Auto",,,

Baskar and Benny killed Aladi Aruna and Ponraj to save his other associates whom he engaged. Such deliberate statement made by a gang leader,,,

like Al-Veldurai cannot prevail upon the evidence of PW6-Socra-tes and PWll-Lakshmanan @ Jeyaraj. The statement of Al-Veldurai to question,,,

No. 17 cannot prevail upon the evidence ofPWs.6andll.,,,

101.44 The opening words in Section 10 Evidence Act are ""where there is reasonable ground to believe that two or more persons have conspired",,,

together to commit an offence"". If prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements",,,

made by anyone of the conspirators in furtherance of the common object is admissible against all. Therefore, there should first be a prima facie",,,

evidence that the person was a party to the conspiracy before his acts or statements can be used against his co-conspirators.,,,

101.45 Proof of existence of agreement or conspiracy may be given by evidence of any thing done, said or written by any one of the alleged",,,

conspirators and other surrounding circumstances. But, as said before, the section provides that the things of which evidence is to be given must",,,

have been (1) said, done or written after the common intention was conceived and (2) in reference to that intention. Evidence satisfying these",,,

conditions may be given whenever there is reasonable ground to believe that two or more persons are involved in a conspiracy. Statement of Al-,,,

Veldurai as recorded in Ex. P22 is yet another strong piece of evidence proving conspiracy between Al-Veldurai and A7- S.A. Raja to eliminate,,,

Aladi Aruna.,,,

101.46 For the sake of arguments, even if we assume that Ex. P22 is not admissible in evidence, even though dehors Ex.P22, the prosecution has",,,

adduced convincing evidence proving the existence of conspiracy between Al-Veldurai, Accused No. 7- S.A. Raja and accused-Benny from the",,,

following:-,,,

Motive of Accused No. 7- S.A. Raja.,,,

Declaration of Accused No. 7 that he would do away with Aladi Aruna on 13.9.2004.,,,

Evidence of PW3-Thenraja that he saw Al-Veldurai, accused-Benny going in a motorcycle to Accused No. 7''s college on 24.12.2004.",,,

Accused No. 2 and 3 and deceased accused-Auto Baskar had no direct enmity to commit the gruesome murder while Accused No. l, 4 and",,,

deceased accused-Benny keeping watch by standing close by to the scene of occurrence suggesting that they are lumped elements.,,,

Even dehors Ex.P22, by adducing evidence on the above, prosecution has convincingly established the conspiracy between Al-Veldurai and",,,

Accused No. 7- S.A. Raja to commit murder of Aladi Aruna and that Al-Veldurai and his associates had agreed to commit the offence for money.,,,

Commission of the occurrence:-,,,

The occurrence was on 31.12.2004. PW6-Socrates is the star witness who witnessed the occurrence on 31.12.2004. Whenever, deceased Aladi",,,

Aruna visited Alangulam, Aladi Aruna and teacher de-ceased-Ponraj used to go for morning walk in Nallur Vilakku-Puthupatti road. On",,,

31.12.2004 at about 7.15 A.M., Aladi Aruna and Ponraj were walking on Nallur Vilakku-Puthupatti road, east of the land belonging to Dharmar",,,

of Aladipatti. At that time, three persons [Accused No. 2-Bala @ Balamurugan, Accused No. 3-Alagar @ Valarntha Alagar], deceased accused-",,,

Auto Baskar] have parked two motorcycles by the sides and were found standing. Deceased accused-Auto Baskar took out a revolver and he,,,

told Aladi Aruna ""vd;dlh bghpa nj gz;zpf;fpl;L nUf;fha;"" and aimed his Revolver at Aladi Aruna. At that time, Aladi Aruna pacified him by saying",,,

that any dispute could be settled by talks. At that time deceased accused-Auto Baskar armed with revolver fired at Aladi Aruna. At the same time,",,,

the other two persons attempted to cut Aladi Aruna with Aruvals and deceased-Ponraj attempted to save Aladi Aruna from the attack. At that,,,

time, Accused No. 2-Bala @ Balamurugan repeatedly cut the neck of Aladi Aruna with Aruval. Simultaneously, Accused No .3-Alagar @",,,

Valarntha Alagar repeatedly inflicted cut injury on the backside of the neck of teacher Ponraj. Both of them fell down and injured. Both the,,,

persons armed with Aruvals attempted to attack PW6-Socrates and deceased accused-Auto Baskar wielding revolver also ran towards him and,,,

PW6 ran away from the scene of occurrence to save his life. Thereafter, all the three accused left the place. Shocked, PW6 immediately rushed to",,,

the petrol bunk which is about a kilometer away and- owned b*y'' deceased Aladi Aruna and told PW7-Vaithialingam, Manager of the petrol",,,

bunk. Both PWs.6 and 7 went to the place of occurrence and saw Aladi Aruna and Ponraj in a pool of blood and both of them went back and,,,

informed PW8-Amuthavanan and thereafter gone to the Police Station and lodged Ex.Pl-Com-plaint.,,,

Evidence of PW6-Socrates draws support from the testimony of PW10-Raghupathy also. PW10 is the resident of Aladipatti village was,,,

waiting at Nallur Vilakku bus stop for boarding the bus for Tirunelveli has stated that about 7.20 A.M. on 31.12.2004, he saw Auto Baskar,",,,

Accused No. 2-Bala @ Balamurugan and PW3-Alagar @ Valarntha Alagar riding on a motorcycle [M013] driven by Auto Baskar coming from,,,

Nallur Vilakku to Puthupatti road to the main road and when the motorcycle took a turn in the main road, PW10 saw the face of Accused No. 2.",,,

It emerges from the evidence of PW10 that immediately, after the occurrence, all the three accused [Auto Baskar, Accused No. 2 and 3] left the",,,

scene of occurrence through the main road and left for Tenkasi.,,,

Complicity of Accused No. 2 , 3 and deceased accused-Auto Baskar:-",,,

Before, we proceed to analyse the evidence of PW11 and complicity of Accused No. l-Veldurai, Accused No. 4-Arumugam and deceased",,,

accused-Benny on the southern side of Puthupatti road, we deem it fit to analyse the evidence of PW6-Socrates pertaining to the complicity of",,,

Accused No. 2, 3 and deceased accused-Auto Baskar and the points raised attacking the credibility of PW6-Socrates.",,,

Reconvention - Credibility of PW6-Socrates:-,,,

(i) Number of arguments were advanced by the accused impeaching the evidence of PW6-Socrates. PW6-Socrates was only a coolie working in,,,

TASMAC shop and that he would not have gone for a walk with an important person like Aladi Aruna who was the former Minister and also held,,,

high post in the Government. Reading of evidence of PW6 would show that PW6 and Aladi Aruna were known to each other for quite long time,,,

and that father of PW6 was also in the politics in DMK together with Aladi Aruna and above all they were living in the same village and having,,,

known to Aladi Aruna for long time, it was nothing unusual for PW6 to have accompanied Aladi Aruna in the morning walk.",,,

(ii) It was nextly contended that if really PW6 was present in the scene of occurrence, when e\ leader like Aladi Aruna was being attacked, as a",,,

normal prudent man the responsibility of PW6 would have been to save him and expose himself even to the danger. But absolutely, there was no",,,

response from PW6. It was further argued that PW6 did not sustain even one simple injury would raise serious doubts about his presence.,,,

(iii) Every person who witnesses a murder, reacts in his own way. Some are stunned, speechless and shocked whereas others may run away to",,,

keep themselves away and removed from the spot to save himself. Everyone reacts in his own special way and there is no natural reaction.,,,

Evidence of PW6 cannot be doubted on the ground as to why he had not acted in a particular way.,,,

(iv) In his evidence, PW6 has stated that he was in a close proximity with deceased Aladi Aruna during the occurrence and tried to prevent, but",,,

Accused No. 3 attacked teacher Ponraj. It was therefore contended that if PW6 was so present he would have tried to prevent and PW6 also,,,

would have met with same fate as one of the accused was having gun and PW6 would not have been spared, as it is the case of prosecution that",,,

accused hatched conspiracy to eliminate Aladi Aruna and anybody who intervenes. This contention does not merit acceptance. When Accused,,,

No. 2 and 3 and deceased accused-Auto Baskar turned towards PW6, PW6 ran from the scene of occurrence to save himself. Accused No. 2",,,

and 3 and deceased accused-Auto Baskar might have tried to chase him. In the mean time, they might have heard whistle sound and might have",,,

left the place. The fact that PW6 escaped unhurt cannot be the reason to doubt his presence in the scene of occurrence.,,,

(v) As pointed out earlier,'' immediately after the occurrence, PW6 ran towards petrol bunk and told PW7 and both of them went to the scene of",,,

occurrence. The car driven by Manuel in which deceased Aladi Aruna came to the petrol bunk was standing in the petrol bunk. On behalf of the,,,

accused, it was argued that the car in the petrol bunk was not taken either to the scene of occurrence or to the house of PW8 or to the Police",,,

Station for quick and necessary action and in particular, when PWs.6 and 7 went back to the scene of occurrence to ascertain as to whether",,,

deceased were alive or not and if alive to take injured /deceased to the hospital for treatment. It was therefore argued that after PW6 informed,,,

PW7, they have gone to the place of occurrence and they could have very well taken the car available in the petrol bunk and could have gone to",,,

the place. We do not find unnatural conduct on the part of PW6 that he had gone to the petrol bunk and informed PW7 and both of them went to,,,

the place of occurrence in TVS-to vehicle.,,,

(vi) Of course, the car in which deceased Aladi Aruna came to the petrol bunk was said to be standing in the petrol bunk and the driver Manuel",,,

was there. Each person reacts his own way. When PW6 told PW7 about the occurrence, in a shocked state of mind and in a hurry, it might not",,,

have occurred to them to take the car. PW6, was an employee of TASMAC and PW7 was employed as Manager in the petrol bunk. Both of",,,

them were not quite accustomed to the user of the or perhaps it did not strike them to take car to rush to the scene of occurrence. Therefore, there",,,

was nothing unnatural of PW6 and PW7 in not taking the car to the place of occurrence. Non-taking of car to the scene of occurrence by PWs.6,,,

and 7 does not throw any doubt about the version of PWs.6 and 7.,,,

(vii) In Ex.Pl-Complaint, PW6-Socrates has stated that one of the assailant fired the deceased Aladi Aruna with gun and deceased Aladi Aruna",,,

got injured on the part between neck and chest. But there was no injury found in the body of the deceased Aladi Aruna. In his explanation, PW6",,,

has stated that out of fear, he has stated that deceased Aladi Aruna got injured on the part between the neck and chest by the gun shot. PW6 was",,,

examined twice on the date of occurrence [31.12.2004] and again on 2.2.2005 and 23.2.2005. It was contended that even though, he was",,,

examined number of times, PW6 did not offer an explanation that he spoke about the misfired gunshot injury out of fear and therefore, it is quite",,,

unbelievable that PW6 would have witnessed the occurrence.,,,

(viii) We find force in the contention of Special Public Prosecutor that in a confused state of mind, PW6 might have stated that deceased Aladi",,,

Aruna sustained gun shot injuries. The revolver wielded by deceased accused-Auto Baskar was a country made revolver. The shot might have,,,

been misfired and thereby causing no injury. In our considered view, on this ground the accused cannot make a mountain out of mole-hill.",,,

(ix) The very fact that PW6 mentioned about the gun shot even though there was no such injury would show mat PW6 is a natural witness. As,,,

pointed out earlier, after the occurrence, PWs.6 and 7 went to the place of occurrence and saw Aladi Aruna and Ponraj without any movements.",,,

PWs.6 and 7 also saw injuries on both the deceased. If really, PW6 was a planted witness, PW6 would have mentioned only the cut injuries",,,

actually found on the person of deceased Aladi Aruna and Ponraj. The very fact that PW6 refers to misfired gun shot would show that PW6 is a,,,

natural witness. In fact, reading of contents of Ex. PI-Complaint would show that it is natural narration of events.",,,

(x) PW 10 -Raghupathy has stated that he saw three accused proceeding from Puthupatti road to main road in one bike. In his evidence, PW6 has",,,

stated that ac-caused came in two bikes and went back in two bikes in the opposite direction. Initially, PW6 has stated that they went in north",,,

direction. Later, he has stated that one motorcycle went in northern direction and another went in southern direction. It was therefore contended",,,

that there is variation between the evidence of PWs.6 and 10 as to how the assailants flied from the scene of occurrence. As such we do not find,,,

any discrepancy in the evidence of PWs.6 and 10. Evidence of PW6 is very clear to the effect that Accused No .2 and 3 and deceased accused-,,,

Auto Baskar went in northern direction and Accused No. l and 4 and deceased accused-Benny went in southern direction.,,,

(xi) Comparing the evidence of PW6-Soc-rates with PWll-Lakshmanan @ Jeyaraj, it was contended that PW11 was collecting grass about 100",,,

feet away in Chandrasekaran''s Coconut-Cashew grove. On seeing, Accused No. l, 4 and deceased accused-Benny wielding Aruvals, PW11 sat",,,

down in the grove and hid himself. On behalf of the accused, it was contended that though PW11 was at about 100 feet away, PW6 has not",,,

mentioned about the presence of PW11 and vice-versa. PW6''s evidence cannot be doubted on the ground that he did not mention about the,,,

presence of PW11. When PW11 hid himself in the grove, PW6 who witnessed the gruesome murder, trying to escape from the scene of",,,

occurrence would not have certainly noticed the presence of PW11. Having regard to the distance between the place of occurrence where PW6,,,

was there and the place where PW11 hid himself, we do not find any merit in the contention advanced.",,,

(xii) Nextly, evidence of PW6 is sought to be assailed contending that PW6 has not mentioned the identification of the assailants in Ex.Pl-",,,

Complaint. Mr. Shanmuganathan, learned counsel for Accused No. 3 contended that Accused No. 3 is stated to be 6 1/2 feet tall and Accused",,,

No. 3 itself called as Valarntha Ala-gar. and if really PW6 has really witnessed the occurrence, he would have disclosed the identity, physical",,,

features of Accused No. 3 in Ex.Pl-Complaint. It was nextly argued that if PW6 had so indicated the identification, it would have provided a vital",,,

clue to the prosecution and non-disclosure of identity of any of the accused including Accused No. 3 raises serious doubts about the credibility,,,

ofPW6.,,,

(xiii) PW6 witnessed the occurrence where two persons were mercilessly hacked to death. Being an eye-witness, PW6 must have been terribly",,,

shocked and frightened. When PW6 was in such a shocked state of mind, while giving Ex.Pl-Complaint quite possibly, he might not have been in a",,,

position to give the identity/physical features/height of the assailants. In fact, the person [PW51-S.I. of Police] who recorded the statement",,,

[Ex.Pl] of PW6 ought to have questioned about the physical features. In our considered view, non-mention of details of the identification/physical",,,

features of the assailants in Ex.Pl is of no consequence.,,,

(xiv) First Information Report need not contain all the details and if all the details are not disclosed in the FIR, it cannot be said that the author of",,,

the complaint was not aware of the details. It is well settled that FIR is not an encyclopedia which must disclose all the facts and details relating to,,,

the offence reported. Omission to mention the identification/physical features of the accused is of no significance. Merely because witness did not,,,

state features or special features of the accused is no ground to doubt his version.,,,

(xv) The occurrence was at 7.15 A.M. on 31.12.2004 and after the occurrence, PW6 went to the petrol bunk and informed PW7 and then went",,,

to the scene of occurrence in a motorcycle and then to the house of PW8 and after informing him, they went to Alangulam Police Station where",,,

statement [Ex.Pl] of PW6 was recorded at 8.30 A.M. On the basis of Ex.Pl-Statement, FIR [Ex.P69] in Cr. No. 847/-2004 was registered and",,,

the same reached to Judicial Magistrate Court, Tenkasi at 11.00 A.M. On behalf of the accused, it was contended that the Police Station is",,,

situated in between the scene of occurrence and the house of PW8 and twice PW6 crossed the Police Station and even then, no information was",,,

given to the Police. It was further argued that there was phone facilities both in the petrol bunk and house of PW8 and no telephonic information,,,

was given to the Police either from the house of PW8 or from the petrol bunk. It was contended that the prosecution was gaining time only to,,,

make deliberations and thereby to plant PW6 as a witness to the occurrence.,,,

(xvi) The above contention does not merit acceptance. Ex. Minister [Aladi Aruna] and his friend [Ponraj] were brutally murdered. Having,,,

witnessed the occurrence, it might not have occurred to PW6 as to how to react. Having seen the deceased Aladi Aruna and Ponraj with injuries",,,

in a pool of blood and PWs.6 and 7 have gone to the house of PW8 and informed him, who in turn asked them to first inform the house of Ponraj.",,,

In our considered view, the conduct of PWs.6 and 7 is quite natural.",,,

(xvii) So far as the contention as to delay in registration of FIR, as such we do not find any delay in registration of FIR. The occurrence was at",,,

07.15 A.M. Ex.Pl-Complaint was given by PW6-Socrates and FIR in Cr. No. 847/2004 was registered at 8.30 A.M. FIR was handed over to,,,

PW43-then Grade I Police Constable of Alankulam Police Station at 9.30 A.M. In his evidence PW43 has stated that after receipt of FIR at 9.30,,,

A.M., he has handed over the same in Tenkasi Judicial Magistrate Court at 11.00 A.M. which is also strengthened by the endorsement seen on",,,

Ex.P69-FIR. Absolutely, we do not find any delay either in registration of FIR or receipt of the same in the Court.",,,

PW6 is the solitary eye-witness. Though number of contradictions here and there were pointed out, in our considered view, those",,,

contradictions would not affect the credibility of PW6. Evidence is to be weighed and not to be counted. Learned Session Judge who had the,,,

opportunity-of observing the demeanor of PW6 also held that PW6 is trustworthy witness.,,,

While appreciating the evidence of witness, where evidence of a witness read as a whole appears to have ring of truth. Once that impression",,,

is formed, it is for the Court to evaluate the evidence to find out whether it is against the general tenor of the case. In our considered view, the",,,

minor discrepancies pointed out in the evidence of PW6 are trivial not touching the core of the prosecution case.,,,

Evidence of PW6 as to the overt act of Accused No. 2 and 3 is also corroborated by medical evidence. When tested for its inherent,,,

consistencies with the other evidence, evidence of PW6 is corroborated by the evidence of PW10 and other evidence and the objective findings",,,

during investigation. Having observed the demeanor of PW6, learned Sessions Judge also arrived at a conclusion that PW6 is trustworthy witness.",,,

In our considered view, evidence of PW6 is unimpeachable in character establishing the guilt of Accused No. 2 and 3 and also the involvement of",,,

deceased accused-Auto Baskar.,,,

Evidence of PW6-Socarates draws support from the testimony of PW10-Raghupathy also. PW10 is the resident of Aladipatti village was,,,

waiting at Nallur Vilakku bus stop for boarding the bus for Tirunelveli has stated that about 7.20 A.M. on 31.12.2004, he saw Auto Baskar,",,,

Accused No. 2-Bala @ Balamurugan and PW3-Alagar @ Valarntha Alagar riding on a motorcycle [M013] driven by Auto Baskar coming from,,,

Nallur Vilakku to Puthupatti road to the main road and when the motorcycle took a turn in the main road, PW10 saw the face of Accused No. 2.",,,

It emerges from the evidence of PW10 that immediately, after the occurrence, all the three accused [Auto Baskar, Accused No. 2 and 3] left the",,,

scene of occurrence through the main road and left for Tenkasi.,,,

Evidence of PW10 would clearly bring home that Accused No. 2, 3 and deceased accused-Auto Baskar went in M013-Bajaj Pulsar",,,

motorcycle. Accused No. 2-Bala @ Balamurugan was already known to PW 10-Raghupathy. Accused No. 2''s father Paramasivam is the bus,,,

driver operating in the main road of Aladipatti. Accused No. 2''s father was known to Selvaraj, friend of PW10. PW10 himself is a driver.",,,

Accused No. 2''s father gave marriage invitation of his son to Selvaraj as well as to PW10. PW10 and his friend Selvaraj attended the marriage,,,

reception at Megalingapuram on the evening of 24.10.2004. In his evidence, PW10 has stated that Accused No. 2''s father was expressing his",,,

feelings about Accused No. 2 that Accused No. 2 is associated with bad company and his involvement in cases. In the marriage, PW10 saw",,,

Accused No. l-Veldurai and enquired him. Accused No. l introduced Benny and Urundai Raja to PW10. Accused No. 4-Arumugam also,,,

participated in the marriage reception. PW10 himself a driver, quite natural that he had attended the marriage reception of Paramasivam''s son.",,,

PW10 having already known Accused No. 2 and deceased accused-Auto Baskar, evidence of PW10 that he had seen Accused No. 2, deceased",,,

accused-Auto Baskar and another person at Nallur Vilakku is a strong piece of evidence against Accused No. 2. and deceased accused-Auto,,,

Baskar. As PW10 had not known Accused No. 3, he has stated only",,,

PW 10''s evidence was assailed contending that he did not inform the Police about fleeing of the assailants and that PW10 and his friend,,,

Selvaraj had gone to Tirunelveli as if nothing happened. It was further argued that PW6 had already known Accused No. 2 and while so,",,,

nondisclosure of identity of the assailants by PW10 at an early date would raise serious doubts about PW 10''s version. It was further urged that,,,

PW10 is cousin brother of PW6-Socrates who is very close to the family of Aladi Aruna and therefore, evidence of PW10 cannot be said to be",,,

corroboration from independent source.,,,

There is no force in the arguments advanced assailing the evidence of PW10. PW10 was examined and his 161 Cr. P.C. statement was,,,

recorded on 1.1.2005 and the same was received in the court on 1.2.2005. Even though, statement of PW10 was received late, the Investigating",,,

Officer might have got vital clue from PW10. It is pertinent to note that Accused No. 2 surrendered himself before the Judicial Magistrate,",,,

Tiruvotriyur even on 03.1.2005. PW10 being the resident of Aladipatti, while standing near Nallur Vilakku bus stop along with his friend Selvaraj",,,

to take bus to Tirunelveli is a natural and probable witness having seen Accused No. 2 and 3 along with deceased accused-Auto Baskar fleeing in,,,

the motorcycle.,,,

Charge U/s. 307 IPC against Accused No. 2 and 3 for attempting on the life of PW6-Socrates:-,,,

When PW6-Socrates tried to prevent the attack, Accused No. 2 and 3 attempted to attack PW6. Deceased accused-Auto Baskar also ran",,,

towards PW6 and PW6 escaped the attack. For the purpose of constituting an attempt under Sec. 307 IPC, there are two ingredients required,",,,

first intention or knowledge, and secondly, an act done.",,,

The intention of the assailants is to be gathered from the nature of weapon and that the accused had done something marking the commission,,,

of the offence and other circumstances. An attempt in order to be criminal need not be the penultimate act. It is sufficient by law, if there is present",,,

an intent coupled with some overt act in execution thereof. For purposes of criminal liability, it is sufficient, if the attempt had gone so far, that the",,,

crime would have been completed, but for the extraneous intervention which frustrated.",,,

Accused No. 2 and 3 were armed with Aruvals and deceased accused-Auto Baskar armed with country made revolver. When deceased,,,

Ponraj intervened, Accused No. 3-Alagar @ Valarntha Ala-gar inflicted cut injuries on him. PW6 has clearly stated that Accused No. 2 and 3",,,

attempted to attack him and deceased accused-Auto Baskar also ran towards him. But for his escape, PW6 would also have been attacked. We",,,

are of the view that on Charge No. 15, Accused No. 2 and 3 were rightly convicted by the trial court U/s. 307 IPC.",,,

Subsequent conduct of Accused No. 2, 3 and deceased accused -Auto Baskar:-",,,

Accused No. l-Bala @ Balamurugan voluntarily surrendered on 03.1.2005 at Judicial Magistrate Court, Tiruvotriyur and he was produced before",,,

the Judicial Magistrate Court, Tenkasi on 10.1.2005. PW52-IO took him to police custody and interrogated on 11.1.2005. Confession statement",,,

recorded from Accused No. 2 led to recovery of M02-Aruval from thorny bushes near Karumbuliyuthu village under Ex.P8-Mahazar.,,,

Identification of M02-Aruval by PW23-Murugan being purchased by Accused No. 4 is a strong piece of evidence against Accused No. 2 and,,,

that he being part of conspiracy.,,,

PW27-Vanumamalai was then a Watchman of two-wheeler parking area in Nainar complex in Tirunelveli. In his evidence, PW27 has stated",,,

that on 31.12.2004 - 8.30 A.M., M013-Bajaj Pulsar motorcycle [TN-09 AD 3151] was parked in the parking area which was entered in the",,,

Register as Sl. No. 22 and that the vehicle was not taken back. PW27 has identified the person who parked the vehicle as tall person and by so,,,

saying PW27 has identified Accused No. 3-Alagar @ Valarntha Alagar in the Court. Confession statement of Accused No. 2 led to recovery of,,,

M013-Bajaj Pulsar motorcycle under Ex.P16-Mahazar. Identification of M013 by PW6 used by the assailants is a strong piece of evidence,,,

against Accused No. 2 and 3.,,,

PW49-Chandra Senan, Inspector of Police, came to know that Kannan [acquitted accused-A6] was harboring Accused No. 3. On such",,,

intimation, PW49 went to Saravana Lodge in Dindigul and PW49 arrested Ravi @ Dog Ravi and deceased accused-Auto Baskar in Room No.",,,

On the way to Tirunelveli from Palani, PW49 met Inspector Ravi who has arrested Accused No. 3 and also Kannan [acquitted accused-A6]",,,

at Vathalagundu by-pass road. PW49 and Inspector Ravi along with arrested accused proceeded to Tirunelveli in one vehicle. On the way, they",,,

learnt that Accused No. l-Veldurai and deceased accused-Benny might be possibly available in the village called Sattupathu within the limits of,,,

Cheranmadevi Police Station. All of them while proceeding to Sattupathu, deceased accused-Auto Baskar wanted to answer the nature''s call and",,,

the accused were taken to Cheranmadevi Police Station. Auto Baskar went to the toilet and on return from the toilet, he fell down fainting. PW49",,,

admitted Auto Baskar in Government Hospital, Cheranmadevi at 1.50 A.M. where the Doctor examined Auto Baskar and declared him dead at",,,

1.50 A.M. on 20.1.2005. Regarding the death of Auto Baskar, prosecution has produced Ex.P88-FIR in Cr. No. 7/2005 U/s. 174 Cr. P.C.",,,

Ex.P90 is the death certificate of Auto Baskar. Even though, post-mortem certificate of Auto Baskar was not produced, in his evidence, PW49",,,

has asserted that Auto Baskar committed suicide by consuming cyanide poison. That death of Auto Baskar was due to consumption of cyanide,,,

poison was not denied. On the other hand, it was only suggested to PW49 that cyanide poison was forcibly administered to Auto Baskar. The",,,

suggestion that cyanide poison was forcibly administered to arrested accused-Auto Baskar does not address to the reason.,,,

After all, PW49 was leading one of the special team and they were arresting the accused in the course of such investigation. While so,",,,

absolutely there was no necessity for them to forcibly administer cyanide-poison to deceased accused-Auto Baskar. It is pertinent to note that,,,

after the arrest of the accused or after the death of Auto Baskar, no such contemporaneous complaint was lodged against PW49 or the",,,

Investigating Agency.,,,

Identification parade in respect of Accused No. 2 and 3:-Accused No. 3-Alagar @ Valarntha Ala-gar was arrested on 20.1.2005 and he,,,

was taken to police custody on 25.1.2005. Accused No. 2-Bala @ Balamurugan surrendered before the Judicial Magistrate, Tiruvotriyur on",,,

03.1.2005. PW44-District Munsif-cum-Judicial Magistrate, Shencottah conducted Test Identification Parade in respect of Accused No. 2 on",,,

20.1.2005 and PW6-Socrates identified Accused No. 2. So far as, Accused No. 3-Alagar @ Valarntha Alagar, test identification parade was",,,

held on 1.2.2005 and PW6-Socarates and PW 10-Raghupathy identified Accused No. 3.,,,

120.1 Test identification parade and the proceedings thereon is assailed contending that identification parade was not conducted in a legal manner.,,,

Placing reliance upon Amitsingh Bhikamsing Thakur Vs. State of Maharashtra, , learned counsel for Accused No. 3 contended that test",,,

identification parade is not a substantive piece of evidence, but could only be used as corroborative piece of evidence.",,,

120.2 Drawing our attention to the evidence of PWs.6, 10 and 44, it was contended that there are contradictions as to how many persons of same",,,

complexion and different facial appearance were arrayed along with the accused. Learned counsel for Accused No. 3 submitted that Accused No.,,,

3 being of unusual height, it is not known as to how PW44-District Munsif-cum-Judicial Magistrate could have arrayed the other prisoners of the",,,

same complexion and age group. It was therefore contended that PW10 could have easily identified Accused No. 3 because of his height and no,,,

credence could be attacked to the identification of Accused No. 3 by PW10. But in so far as test identification parade is concerned, PW10 has",,,

denied the suggestions put to him by the accused.,,,

120.3 Learned counsel for the Accused No. 2 and 3 contended that witnesses had occasion to see newspapers in which photos of Accused No.,,,

2 and 3 were flashed. It is pertinent to note that not even one suggestion was put to any of the witnesses who have identified the accused that,,,

Police personnel had taken any steps to show the accused to the witnesses. No material was placed before the Court to show that photos of,,,

accused were published in the newspapers.,,,

120.4 In 2005 SCC (Cri) 1269 [Munshi Singh Gautam and others v. State of M.P.], the Supreme Court held as follows:-",,,

...The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify,,,

them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main",,,

object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also",,,

to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime....,,,

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of Evidence,,,

Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are",,,

relevant u/s 9 of Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere",,,

identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test,,,

identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe, rule of prudence to",,,

generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the",,,

form of earlier identification proceedings.,,,

120.5 Accused No. 2 surrendered before the Judicial Magistrate Court, Tiruvotriyur on 3.1.2005 and he was taken into police custody on",,,

11.1.2005 and test identification parade was conducted on 20.1.2005 within a reasonable time after his surrender. Like wise, Accused No. 3 was",,,

arrested on 20.1.2005 and test identification parade was conducted on 01.2.2005 within a reasonable time after his arrest. As such we do not find,,,

any delay in holding test identification parade.,,,

120.6 Along with the evidence and other circumstances placed by the prosecution, test identification parade proceedings in which Accused No. 2",,,

was identified by PW6-Socrates and Accused No. 3 was identified by PWs.6 and 10 is yet another corroborative piece of evidence.,,,

120.7 Test identification parade and identification of Accused No. 2 and 3 by PWs.6 and 10 was mainly attacked contending that photographs of,,,

the accused were shown to the witnesses. Learned counsel for Accused No. 3 contended that Accused No. 3 was arrested on 20.1.2005 and he,,,

was taken to police custody on 25.1.2005 and police custody of Accused No. 3 was taken mainly for the purpose of showing him to the witness.,,,

It was further argued that on the date of test identification parade, Accused No. 3''s photo was published in the newspaper and while so, the",,,

identification of Accused No. 2 and 3 by the witnesses is of no consequence. Placing reliance upon Vijayan @ Rajan Vs. State of Kerala, , it was",,,

contended that photograph of the accused shown to the witnesses and also lo-cal newspapers published the photographs, identification by the",,,

witnesses in the test identification parade would loose its weight.,,,

120.8 The idea of conducting a test identification parade is to test the ability of a witness to identify a particular person, then photograph of the",,,

suspect should not be shown to him in advance. Otherwise the parade becomes only a farce. But that is different from the press publishing photos,,,

of the accused in the newspapers.,,,

120.9 In a State where there is proliferation of newspapers, how can a witness be made, responsible if newspapers publish the photographs of the",,,

accused. Neither the prosecution nor the witness made responsible for such publication of photo-graphs in the newspapers. No proposition can be,,,

laid down that evidence of witnesses is liable to be thrown over board in cases where the newspapers published the photo of the accused. If any,,,

such view to be taken evidence of good number of witnesses would be exposed to the peril of being disbelieved. Of course, it is upon to the court",,,

to decide whether evidence of a witness regarding identification was really influenced by publication of photographs in the newspapers. PW10 has,,,

denied the suggestion that Accused No. 2 and 3 were already shown to him and he has also denied having seen the newspapers. Excepting a bare,,,

suggestion to PW10, nothing has elicited from PW10 that he has actually seen the photographs in the newspapers and was influenced by such",,,

publication.,,,

120.10 Identification of the accused by the witness soon after the formers arrest is of vital importance because it furnishes to the investigating,,,

agency an assurance that the investigation is proceeding on the correct lines in addition to furnishing corroboration of the evidence to be given by,,,

the witness in court at the trial. Evidence of identification merely corroborates and strengthens the oral testimony in court which alone is the primary,,,

and substantive evidence as to identity. That immediately after the arrest of Accused No. 2 and 3, they were identified by PWs.6 and 10 lends",,,

assurance to their testimony in the Court.,,,

Re-contention Latches in Investigation:-,,,

On behalf of accused, it was contended that cell phones were seized both from scene of occurrence as well as from the accused and while so,",,,

investigation agency has not made any efforts to collect the details of the call log from the various cell phones. Since number of cell phones have,,,

been seized from the accused as well as from the scene of occurrence, it would have been desirable if the investigating agency have collected the",,,

call log to find out any clue regarding the communication between the conspirators. In the era of information technology, it is desirable that the",,,

investigating agency attach scientific temper of investigative methods. But omission to collect the particulars as to call log and other calls would not,,,

adversely affect the prosecution case which otherwise is based upon cogent facts.,,,

121.1 On behalf of the accused it was contended that non-examination of Manuel [car driver of Aladi Aruna] throws serious doubts about the,,,

prosecution version. It was further argued that non-examination of Manuel would suggest that PW6-Socrates was not present in the place of,,,

occurrence and the learned counsel for the accused urged to draw an adverse inference against the prosecution. The above contention does not,,,

merit acceptance. By perusal of records, it is seen that car driver Manuel was interrogated by the Investigating Officer and his Sec. 161 (3) Cr.",,,

P.C. statement was recorded. Choice of examination of witness is always with the prosecution. Unless a key witness was withheld by the,,,

prosecution, no adverse inference could be drawn against prosecution.",,,

121.2 That apart, car driver Manuel was not an eye-witness. On being informed by PW6, PW7-Vaidyalingam has gone to the scene of",,,

occurrence and saw the dead bodies. Aladi Aruna and others went in the car and got down, and the driver came back as they left for a morning",,,

walk. PW6 came back and informed them about the incident. In such circumstances, in our view, non-examination of Manuel would not adversely",,,

affect the prosecution case.,,,

121.3 Learned Senior Counsel for the Accused No. 7 contended that though PW6 was examined by the Investigating Officer four times i.e on,,,

31.12.2004, 31.12.2004, 23.02.2005 and 02.02.2005, the statement u/s. 161(3) Cr. P.C. dated 31.12.2004 reached the court on 01.01.2005.",,,

Likewise, the statement dated 02.02.2005 reached the court on 08.03.2005 and the statement dated 23.02.2005 reached the court on",,,

31.03.2005 which would amount to serious infirmity in the prosecution case.,,,

121.4 Learned counsel for the Accused No. 7 would further contend that statement of PW10, though recorded by Investigating Officer on",,,

01.01.2005, the same reached the Court on 01.02.2005. Learned counsel for the accused further argued that the statement recorded u/s 161(3)",,,

Cr. P.C of the other witnesses also reached the court with an inordinate delay which would throw serious doubts about the case of prosecution. In,,,

support of his contention learned Senior Counsel for Accused No. 7 placed reliance upon Ganesh Bhavan Patel and Another Vs. State of,,,

Maharashtra, .",,,

121.5 Countering the arguments, Mr. N. Natarajan, learned Senior Counsel/Special Public Prosecutor for State submitted that the delay in",,,

examining the witness by the police u/s. 161(3) Cr. P.C and reaching the court itself cannot be a ground to discard the testimony of a witness. In,,,

support of his contention, learned Senior Counsel placed reliance upon 2000 SCC (Cri) 206 (Ramesh v. State of M.P).",,,

121.6 Delay in examination of witness would not materially affect the prosecution case and would be material only if it is indicative and suggestive,,,

of some unfair practice for the purpose of introducing a got up witness to falsely support the prosecution case. Since identity of the assailants were,,,

not known, there would be a delay in examining the witnesses and it cannot be said that there was unjustified delay in recording the statement of",,,

witnesses. Identity of the assailants were not known till Police custody of Accused No. 2 was taken on 11.1.2005 and he was interrogated. Key,,,

witnesses like PW6-Socrates and PW 10-Raghupathy were examined by the Investigating Officer immediately after the occurrence i.e. on,,,

31.12.2004 and 01.1.2005 respectively. Statement of PW11 was recorded on 23.2.2005. As such we do not find any unjustified delay in,,,

recording the statement of witnesses and receipt of their statements in Court.,,,

121.7 Arguments noted under were advanced on the ground that there was delay and defects in the investigation.,,,

Finger prints lifted was not properly examined;,,,

Marriage invitation of Paramasiva Konar whose son''s marriage reception (brother of A2) PW10 is said to have attended;,,,

Admittedly assailants sped away in motor cycle and while so, there was no necessity to call for snuffer dog;",,,

There was delay in examination of witnesses and receipt of their statements to court.,,,

121.8 On behalf of the accused, it was mainly argued that investigation was defective on the above aspects which would raise serious doubts",,,

about the prosecution version. Pointing out certain discrepancies in the facts and course of events in the investigation, it was contended that",,,

defective investigation would affect the substratum of the prosecution.,,,

121.9 There is no force in the contention that due to lapses/omissions in investigation the prosecution must fail. As such we do not find any defects,,,

in the investigation. Assuming that there are omissions/defects in the investigation, a defective investigation by itself cannot be a ground for acquittal,",,,

lest it would amount to giving premium to such lapses in the investigation.,,,

121.10 In the case of alleged defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in,,,

acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the,,,

investigation is designedly defective. (See Karnel Singh Vs. State of M.P., ].",,,

121.11 In Paras Yadav and others Vs. The State of Bihar, , it was held that if the lapse or omission is committed by the investigating agency or",,,

because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable,,,

or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief",,,

would be perpetuated and justice would be denied to the complainant party.,,,

121.12 In the case of Budh Singh Vs. State of M.P., , at page 503, the Supreme Court held as follows:",,,

A defective investigation by itself cannot be a ground for acquittal. Witnesses examined on behalf of the prosecution have been believed both,,,

by the learned trial judge as also by the High Court. So far as the appellant is concerned, we do not find any reason to differ there from.",,,

121.13 In the case of Visvesaran v. State reported in 2003 SCC (Cri) 1270, the Supreme Court held as follows:",,,

...It is also required to be kept in view that every defective investigation need not necessarily result in acquittal., In defective investigation, the",,,

only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit solely as a result of defective investigation.,,,

Any deficiency or irregularity in investigation need not necessarily lead to the rejection of the case of the prosecution when it is otherwise proved.,,,

121.14 In the case of Rotash v. State of Rajasthan, (2006) 12 SCC 64, the Supreme Court held as follows:-",,,

The investigation was not foolproof but then defective investigation would not lead to total rejection of the prosecution case.,,,

In Visveswaran v. State this court held:,,,

Before we notice the circumstances proving the case against the appellant and establishing his identity beyond reasonable doubt, it has to be",,,

borne in mind that the approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost,,,

sensitivity, courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are",,,

required to be examined and the courts are not to get swayed by minor contradictions or insignificant discrepancies which are not of substantial,,,

character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities,,,

are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In,,,

defective investigation, the only requirement is of extra caution by courts while evaluating evidence. It would not be just to acquit the accused solely",,,

as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution,,,

when it is otherwise proved.,,,

In State of M.P. v. Mansingh this court held:,,,

Even if it is accepted that there were deficiencies in the investigation as pointed out by the High Court, that cannot be a ground to discard the",,,

prosecution version which is authentic, credible and cogent. Non-examination of Hira Lai is also not a factor to cast doubt on the prosecution",,,

version. He was not an eyewitness, and according to the version of PW8 he arrived after PW8. When PW8 has been examined, the non-",,,

examination of Hira Lai is of no consequence.,,,

Applying the ratio of the above decision, even if the investigation is held to be defective, the court is required to appraise the evidence and material",,,

placed before it as to whether the case has been made out or n c and a mere defect in the investigation cannot result in the rejection of the,,,

prosecution case.,,,

121.15 Investigation is not the solitary area for the judicial scrutiny m criminal trial. The conclusion of the court cannot be allowed to stand solely,,,

on the probity of the investigation. It is well settled that in criminal trials even if the investigation is defective, the rest of the evidence must be",,,

scrutinized independently of the impact of the defects otherwise the criminal trial will plummet to the level that Investigating Officer ruling the,,,

criminal trials. Criminal justice should not be made causality for any defects/lapses committed by the Investigating Officer. We are convinced that,,,

the testimony of PWs.6,10 and 11 to the occurrence is true and the court is very well to act upon it albeit the defects pointed out in the",,,

investigation.,,,

Complicity of Accused No. 1,4 and 7 in the occurrence - Power of the appellate court to re-appreciate the evidence:-",,,

Accused No. l, 4 and 7 were acquitted of various charges which is challenged by the State in C.A. No. 270/2008. It is settled position of law",,,

regarding the powers of the High Court in an appeal against an order of acquittal is that the court has full powers to review the evidence upon,,,

which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the,,,

presumption of innocence in favour of the accused is reinforced. [Vide Madhukar D. Shende Vs. Tarabai Aba Shedage, ].",,,

After considering all the leading decisions on the point in Chandrappa and Others Vs. State of Karnataka, , the Supreme Court laid down the",,,

following general principles regarding powers of the appellate court in dealing with the appeal against order of acquittal:-,,,

(1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.",,,

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the",,,

evidence before it may reach its own conclusion, both on questions of fact and of law.",,,

(3) Various expressions, such as, ""substantial and compelling reasons"", ""good and sufficient grounds"", ""very strong circumstances"", ""distorted",,,

conclusions"", ""glaring mistakes"", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such",,,

phraseologies are more in the nature of ""flourishes of language"" to emphasize the reluctance of an appellate court to interfere with acquittal than to",,,

curtail the power of the court to review the evidence and to come to its own conclusion.,,,

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the",,,

presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be,,,

innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his",,,

innocence is further reinforced, reaffirmed and strengthened by the trial court.",,,

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal",,,

recorded by the trial court.,,,

Observing that if the appellate court on re-appreciation of evidence and keeping in view the well established principles, comes to the contrary",,,

conclusion, appellate court can record conviction, in 2008 (9) SCC 484 [State of Maharashtra v. Sujay Mangesh Poyarekar], the Supreme Court",,,

held as follows:-,,,

Now, so far as powers of the appellate court in an appeal against acquittal are concerned, no restrictions have been imposed by the Code on",,,

such powers while dealing with an order against acquittal. In an appeal against acquittal, the High Court has full power to re-appreciate, review",,,

and reweigh at large the evidence on which the order of acquittal is founded and law reach its own conclusion on such evidence. Both questions of,,,

fact and of law are open to determination by the appellate court.,,,

It is no doubt true that in a case of acquittal, there is a double presumption in favour of the respondent-accused. Firstly, the presumption of",,,

innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed innocent unless he is,,,

proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further",,,

reinforced by the trial court (and certainly not weakened). Nonetheless, it is not correct to say that unless the appellate court in an appeal against",,,

acquittal under challenge is convinced that the finding of acquittal recorded by the trial court is ""perverse"", it cannot interfere. If the appellate court",,,

on re-appreciation of evidence and keeping in view well-established principles, comes to a contrary conclusion and records conviction, such",,,

conviction cannot be said to be contrary to law."" Applying the above principles to the case on hand, we proceeded to consider the evidence",,,

adduced to bring home the guilt of Accused No. l, 4 and 7.",,,

Complicity of Accused No. l, 4 and deceased Accused-Benny:-",,,

As held earlier, prosecution has proved the existence of conspiracy. The rationale of conspiracy is that manifestation to crime is provided by an",,,

acts. Circumstances to be proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.",,,

125.1 Prior to the occurrence, Accused No. l, deceased accused-Auto Baskar and Benny were together and on 24.10.2004 all of them had gone",,,

to attend the marriage of Accused No. 2''s brother. PW23-Murugan is running a shop in Alangulam at Ambasamudram road selling Aruval, knife,",,,

spade and such other iron articles. In his shop, PW23 also having instrument for sharpening of arrivals. On the evening of 27.12.2004 - 6.00 P.M.,",,,

Accused No. 4-Arumugam had gone to the shop of PW23-Murugan and purchased five (sic) [gun shaped aruvals]. PW23 had identified MOs. l,",,,

2 and 25 to 27-Aruvals having been purchased from his shop. Evidence of PW23 that Accused No. 4 had purchased five Aruvals [MOs.1,2 and",,,

25 to 27] from his shop on the evening of 27.12.2004 is a strong incriminating circumstance against Accused No. 4.,,,

125.2 Submitting that Accused No. 4 could not have purchased the aruvals, it was contended that it would have not been possible for PW23 to",,,

identify all five aruvals. Even though, PW23 has stated that Accused No. 4 has purchased same size of aruvals, PW23 has clearly identified all five",,,

aruvals in the Court. We find no force in the arguments advanced assailing the evidence of PW23.,,,

125.3 In so far as, Accused No. l, 4 and de-ceased accused-Benny, PW11-Lakshmanan @ Jeyaraj was collecting grass for his cattle in",,,

Coconut-Cashew grove owned by Chandrasekaran which is situated opposite to the place of occurrence. In his evidence, PW11 has stated that",,,

he was so collecting the grass, he heard whistle sound and when he looked towards west where from the sound came, he saw Accused No. l-",,,

Veldurai, Accused No. 4-Arumugam and another person [deceased accused-Benny]. PW11 saw them wielding Aruvals, fear struck him and",,,

PW11 immediately sat on the ground and within few seconds all three persons left the place in the motorcycle.,,,

125.4 Evidence of PW11 was seriously attacked contending that PW11 was examined by Investigating Officer only on 23.02.2005 long after the,,,

arrest of Accused No. 2 and that his statement was received in court only on 31.03.2005. It was further argued that if really PW11 had seen Al-,,,

Veldurai, A4-Arumugam and deceased accused-Benny while crossing the petrol bunk, PW11 would have informed about the death of Aladi",,,

Aruna either in the petrol bunk or might have informed the police. It was further argued that in view of delay in interrogation of PW11 and delay in,,,

receipt of statement in the court, the trial court has rightly disbelieved his evidence.",,,

125.5 Of course PW11 was examined on 23.02.2005 and his statement was received on 31.03.2005. As discussed infra, PW11 as a rustic",,,

person on seeing two dead bodies lying in a pool of blood, PW11 might have been greatly frightened and would not have chosen to involve",,,

himself. For the reasons infra, delay in interrogation of PW11 cannot be a ground for impeaching his credibility.",,,

125.6 Accused No. l and 4 belonging to the same place Alangulam. They were known to PW11 whereas deceased accused-Benny was not,,,

known to PW11. Trial court disbelieved the evidence of PW11 and dispelled his testimony on the following grounds:-,,,

PW11 is passer-by the bodies of Aladi Aruna and Ponraj. But did not bother to go near the bodies or did not stop for a while and look at the,,,

bodies;,,,

Till 9.00 A.M., PW11 sat in the field and that appears to be unbelievable;",,,

PW11 being neighbor of Aladi Aruna when Investigating Agency finding it difficult to fix the identity of persons, PW11 has not chosen to come",,,

forward to disclose the identity of the persons whom he had seen with aruvals and the conduct of PW11 is unnatural suggesting that he is a planted,,,

witness;,,,

PW6 who is the witness to the occurrence must have seen PW11 and non-mention of name of PW11 and vice-versa would throw serious doubts,,,

about the evidence of FWII;,,,

The above reasoning of the trial court for rejecting the evidence of PW11 is manifestly perverse and demonstrably unsustainable. We find it difficult,,,

to doubt the evidence of PW11. Seldom there is any justification for rejection of the evidence of PWII.,,,

125.7 To appreciate the evidence of PW11, we need to analyse the location of the place of occurrence and the place where PW11 was cutting",,,

the grass and kept himself hiding. PW11 was cutting the grass in the Coconut-cashew nut grove of Chandrasekaran marked as Sl. No. 10 in the,,,

rough plan[Ex.P7] situated on the eastern side of Nallur Vilakku-Puthupatti road. While cutting the grass, at about 7.00 - 7.15 A.M., southeastern",,,

side of the scene of occurrence, PW11 heard whistle sound which must have drawn his attention. On looking at the place, PW11 saw Accused",,,

No. l, 4 and another person [deceased accused Benny] were armed with aruvals. On seeing them armed with aruvals, PW11 must have been",,,

frightened and quite naturally, he must have sat down in the field itself.",,,

125.8 The very fact that Accused No. l, 4 and deceased accused-Benny were armed with aruvals and that a signal was given by whistling would",,,

clearly show that such signaling was understanding and that there was prior meeting of minds. When being confronted with the evidence of PW11,",,,

it was a blunt denial. We are of the view, only in pursuance of conspiracy, signal was ''sent by whistling and thereafter accused No. l, 4 and",,,

deceased accused-Benny fleeing the place.,,,

125.9 Trial court repelled the evidence of PW11 on the ground that he did not stop for a while to look at the bodies. By perusal of photographs,,,

[M033-series], both the bodies were found on the side of the road near cactus in a pool of blood. Seeing the bodies, being rustic PW11 would",,,

not wish to involve himself. On seeing the bodies in a pool of blood, reaction of anybody would be shock and being frightened; more so, when a",,,

VIP like Aladi Aruna was found murdered. No standard set rule of behavior could be set forth. While so, trial court erred in disbelieving the",,,

evidence of PW11 on the ground that he did not go near the body and have a look at the bodies.,,,

125.10 The next ground for disbelieving the evidence of PW11 is that PW11 sat on the field and he was so sitting in the field till 9.00 A.M. and,,,

only after 9.00 A.M., PW11 rose up and went. Chandrasekaran''s field was a coconut-cashew grove. Early in the morning PW11 saw Accused",,,

No. l, 4 and another person with aruvals and quite probably PW11 must have been frightened and sat in the field itself. Only after making sure that",,,

the persons armed with weapons have left the place, PW11 would have mustered the courage to go from the place. There is nothing unusual in the",,,

conduct of PW11 waiting in coconut grove for some time.,,,

125.11 The next ground for rejecting the evidence of PW11 by the trial court was that he did not tell the Police nor he did come forward to inform,,,

the relatives of Aladi Aruna about the identity of the assailants. In our considered view the approach of trial court in the appraisement of evidence,,,

of PW11 is unreasonable and perverse. PW11 is a simple rustic. He saw Accused No. l, 4 and another accused from the southern side armed",,,

with aruvals. When he proceeded towards to go to the village, PW11 saw Aladi Aruna and Ponraj lying in a pool of blood. Being a simple rustic,",,,

quite possibly PW11 would have chosen to remain silent without disclosing the identity of the assailants.,,,

Only few persons who witness the occurrence and known the assailants come forward to assist the investigation. Others try to keep,,,

themselves away from the ordeals of investigation and appearing before the Police and the Court. That apart, it is not uncommon that when the",,,

witnesses go to the police to inform what they witnessed, at times they themselves become suspect and made by the Police to sit in the Police",,,

Station. That apart Police summon them for investigation/interrogation for more than once. For the fear of being falsely roped in or being frequently,,,

interrogated, PW11 might not have gone to the Police Station nor might have come forward to disclose the identity of the assailants either to the",,,

Police or to the relatives of Aladi Aruna. On knowing that Accused No. l and deceased accused-Benny were arrested in Gujarat and when Benny,,,

died by consuming cyanide poison, PW11 mustered the courage to come forward to disclose about the assailants - Accused No. 1,4 and",,,

deceased accused-Benny. Keeping in view the natural human contact, it would be unreasonable to disbelieve the evidence of PW11 on the ground",,,

that he did not inform the Police and identity of the assailants at an early point of time. In our considered view, the learned Sessions Judge erred in",,,

disbelieving the evidence of PW11 and the grounds for rejection of his evidence are demonstrably unsustainable. Where the court entertains,,,

unsustainable doubts and rejects the credible evidence for slender reasons, it is for the duty of High Court to interfere with the findings.",,,

Ex. P22 - whether retracted confession can form a basis for conviction against Accused No. l. We have already held that Ex. P22 being a,,,

confession statement is the piece of evidence against Accused No. l. During 313 Cr. P.C. questioning Accused No. l denied having given Ex.P22-,,,

statement. We are conscious that it would be unsafe to base conviction on the retracted confession unless corroborated.,,,

A retracted confession can form the basis of conviction if the court is satisfied that it is true and has been voluntarily made. It is neither an,,,

inflexible rule of law nor practice nor prudence that in no circumstances the conviction can be made on the basis of the retracted confession without,,,

corroboration.,,,

Even though, Accused No. l retracted Ex. P22 confession, confession statement is corroborated by other evidence enumerated under",,,

bringing home the acts of Accused No. l. On 24.12.2004, Accused No. l and deceased accused-Benny went to Accused No. 7''s college.",,,

Evidence of PW11 that he saw Accused No. l, 4 and deceased accused-Benny armed with aruvals on 31.12.2004 - 7.15 A.M close by to the",,,

scene of occurrence. Accused No. l and deceased accused-Benny flied to Gujarat and were apprehended in the house of Maya Thevar. On being,,,

apprehended Benny committed suicide by consuming cyanide poison. In our considered view, even though, Accused No. l retracted, Ex. P22",,,

confession, the same is corroborated by the above.",,,

In an appeal against acquittal, when the trial court has failed to analyse the evidence and when the appreciation of evidence is vitiated by",,,

ignoring the evidence, High Court has full power to re-appreciate the evidence. In our considered view evidence of PW11 was misread and not",,,

properly considered and findings of the trial court is opposed to weight of evidence and such an erroneous approach adopted by the trial court,,,

resulted in an unmerited acquittal of Accused No. l, 4 and Accused No. 7.",,,

Subsequent Conduct of the Accused No. l and deceased accused-Benny). As pointed out earlier, Accused No. l and deceased accused-",,,

Benny traveled to a far away place Ahamedabad. As discussed earlier, Accused No. l and deceased accused-Benny were arrested in the 4th",,,

floor, Vaikunth Apartment, Gujarat on the night of 25.1.2005/26.1.2005. M029-revolver, MOs.32 and 31-cartridges and M036-cash were",,,

recovered from Accused No. l. At that time when he was apprehended deceased accused-Benny consumed cyanide and fallen down. From,,,

deceased accused-Benny MO30-cover for cartridges, M037-Cellphone and M038-currency note were recovered.",,,

The following conduct of the accused are very much relevant:-,,,

That both Accused No. l and deceased accused-Benny went together and that they escaped together to Gujarat to avoid being detected.,,,

Immediately on being apprehended, deceased accused-Benny consumed cyanide poison and committed suicide.",,,

By the evidence adduced against Al-Veldurai summarized in Para 129 and the above subsequent conduct, we find that prosecution has",,,

established the guilt of Al-Veldurai and in our considered view, Acquittal of Al-Veldurai is to be reversed. Al-Veldurai is found guilty u/s. 120 (B)",,,

r/w. 302 IPC [Charge No. l], 302 r/w. 120 (B) IPC (2 counts) [Charge No. ll & 13], 307 r/w. 120(B) IPC [Charge No. 16]. Conviction of Al-",,,

Veldurai u/s. 25(lB)(a) of Arms Act stands confirmed and the sentenced imposed upon him also stands confirmed.,,,

Accused No. 4:-,,,

On 20.1.2005 at 4.00 A.M., Accused No. 4-Arumugam and Paramasivam were arrested at Seethaparpanallur. Confession statement of Accused",,,

No .4 led to recovery of M014-motorcycle and M024-cell-phone. Accused No. 4 took the Investigating Officer to Ramar Kovil in Alangulam-,,,

Tenkasi road and at his instance, M025-Aruval was recovered by PW52-IO under Ex.P18-Mahazar. Recovery of M025-Aruval and",,,

identification of the same by PW23 having been purchased by Accused No. 4 on 27.12.2004 is a strong incriminating circumstance against,,,

Accused No. 4 establishing his complicity in the occurrence.,,,

By the evidence of PWs.23 and 11 and recovery of M025-Aruval from A4-Arumugam, we find that the prosecution has established the guilt",,,

of A4-Aru-mugam and in our considered view, acquittal of A4-Arumugam is to be reversed. A4-Arumugam is found guilty U/S.120(B) r/w. 302",,,

IPC [Charge No. 2], 302 r/w. 120(B) IPC(2 counts) [Charge No. ll and 13] and 307 r/w. 120(B) IPC [Charge No. 16].",,,

Accused No. 7:-,,,

Complicity of Accused No. 7 is established by the following:-,,,

Motive - deep-seated animosity of Accused No. 7 against Aladi Aruna in running the Engineering College.,,,

Proclaiming to do away with Aladi Aruna.,,,

Accused No. l and deceased accused-Benny went into Accused No7''s college on 24.12.2004.,,,

Ex.P22-Extra judicial confession of Accused No. l.,,,

Till Accused No. l-Veldurai was arrested in Gujarat on 25.1.2005, involvement of Accused No. l did not come to the fore.",,,

We have already elaborated first two aspects in Paras 54 to 77.,,,

An arranged pattern of disbursement of accused in pairs excepting Accused No. 2. Accused No. l and deceased accused-Benny flied to,,,

Gujarat; Accused No. 3 and acquitted accused-A6 [Kannan] in one pair being arrested at Vathalakundu by-pass road and deceased accused-,,,

Auto Baskar and accused Ravi @ Dog Ravi in another pair being arrested at Saravana Lodge at Dindigul. On being arrested, deceased accused-",,,

Benny and Auto Baskar going to bath room and consuming cyanide poison is something unique and unusual. The subsequent conduct of the,,,

accused in disbursing in pairs and two of the accused committing suicide by consumption of cyanide poison strengthens the complicity of Accused,,,

No. 2 and 3; Accused No. l and 4 and 7; and deceased accused-Benny and Auto Baskar in the commission of offence..,,,

Value of Ex. P22 against Accused No. 7 - co-conspirator:-,,,

In Ex.P22, Accused No. l has stated that due to enmity in running the college, in the talks Accused No. 7 agreed to give Rs. 5 lakhs and that",,,

Accused No. 7 paid Rs. 20,000/- in advance and in that connection they killed Aladi Aruna and Ponraj.",,,

Court should not ordinarily act upon retracted confession of co-accused without corroboration. As regards, the other co-accused although",,,

corroborative evidence may be necessary, it is not necessary that such corroborative evidence should by itself be sufficient to sustain the",,,

conviction.,,,

As we have pointed earlier in Para 101.38, in the instant case we are dealing with a conspiracy trial. As held by the Supreme Court in",,,

Firozuddin Basheeruddin and Others Vs. State of Kerala, any declaration by one conspirator made in furtherance of a conspiracy and during its",,,

pendency is admissible against each co-conspirator. Regarding admissibility of evidence, loosened standards prevail in a conspiracy trial.",,,

Notwithstanding the retraction confession [Ex.P22] by Al-Veludurai, the same is admissible in evidence against Co-conspirator A7- S.A. Raja.",,,

As we have discussed earlier, Accused No. 7 had strong enmity towards the deceased Aladi Aruna in grant of affiliation of Einstein�s",,,

Engineering College and cancellation of affiliation to Accused No. 7''s college on 23.8.2004 and the subsequent events. Evidence has been,,,

adduced showing that Accused No. l and deceased accused-Benny went into the college of Accused No. 7 and conspired. Even dehors, in our",,,

considered view, there is substantial direct and circumstantial evidence to prove the conspiracy between Accused No. l and Accused No. 7.",,,

Section 10 of Indian Evidence Act lays down that in prosecution for conspiracy when concert and connection between the persons charged,,,

have been sufficiently established the statements, acts or declaration of each conspirator are admissible in evidence against the others.",,,

We have already held that the prosecution has proved Accused No. 7- S.A. Raja was party to the conspiracy and that only at his instance,,,

the conspiracy has been hatched. Therefore, in our considered view that the acquittal of A7- S.A. Raja is to be reversed. For the commission of",,,

murdering Aladi Aruna and Ponraj and for the attempt on the life of PW6-Socrates as co-conspirator, Accused No. 7 is found guilty u/s. 120(B)",,,

r/w. 302 IPC [Charge No. l], 302 r/w. 120(B) IPC [2 counts] (Charges No. 10 & 14) and U/s. 307 r/w. 120(B) IPC. [Charge No. 17].",,,

When concerted attack was made on the victims by Accused No. 2 and 3 and Accused No. l and 4 and deceased accused-Benny, keeping",,,

watch on the southern side would clearly show that Accused No. l and 4 and deceased accused-Benny had common object for the commission of,,,

offence and acting in furtherance of conspiracy. In our considered view, trial court was not right in rejecting the evidence of PWs.6 and 11 and the",,,

subsequent conduct of Accused No. l and 4.,,,

Trial court erred in ignoring the material evidence adduced by the prosecution proving the conspiracy between Accused No. l and 7 in which,,,

Accused No. 2,3 and 4 and deceased accused-Auto Baskar and Benny were the co-conspirators. In our considered view, trial court erred in",,,

acquitting Accused No. 2 and 3 for the charge of criminal conspiracy. Acquittal of Accused No. 2 and 3 u/s. 120(B) IPC [Charge No. 2] is,,,

reversed and both Accused No. 2 and 3 are convicted U/S.120(B) r/w. 302 IPC.,,,

The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the,,,

acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view ignoring the admissible,,,

evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or",,,

any of the accused has committed any offence or not.,,,

In Solanki Chimanbhai Ukabhai Vs. State of Gujarat, , the Supreme Court held as follows:-",,,

...In exercising that powers of the appellate court should give proper weight and consideration to the following matters :-,,,

(1) the views of the trial Judge as to the credibility of the witnesses;,,,

(2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial.",,,

Courts have duty to take genuine efforts within the judicial sphere to search out the truth. The general apathy and indifference of the public to,,,

go to the Police/Investigating Agency also cannot be said to be unusual. While so, we are of the view that trial court failed to analyse the evidence",,,

of PW11 from a realistic angle. Finding of the trial court rejecting the evidence of PW11 is manifestly erroneous. Trial court committed a serious,,,

error in discarding the evidence of PW11 which has resulted in unmerited acquittal of Accused No. l and 4.,,,

By a series of decisions, Supreme Court has laid down the parameters of appreciation of evidence on record and jurisdiction and limitations",,,

of the appellate court and while dealing with appeal against an order of acquittal, Supreme Court observed in Tota Singh and Another Vs. State of",,,

Punjab, as follows :-",,,

...The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no,,,

interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case,,,

is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any,,,

court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of",,,

the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an",,,

order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.,,,

Observing that there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based, in State of",,,

Rajasthan Vs. Raja Ram, , the Supreme Court held as follows:-",,,

There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal",,,

shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs,,,

through the web of ad-, ministration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing",,,

to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount",,,

consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is,,,

no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is case upon the appellate court to re-",,,

appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused",,,

committed any offence or not. [See Bhagwan Singh and Others Vs. State of Madhya Pradesh, , The principle to be followed by the appellate",,,

court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If,,,

the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji",,,

Sahabrao Bobade and Another Vs. State of Maharashtra, , Ramesh Babulal Doshi Vs. State of Gujarat, and Jaswant Singh Vs. State of Haryana,",,,

.,,,

From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would",,,

not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion,,,

arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely, because two",,,

views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below. However, the",,,

appellate court has a power to review the evidence if it is of the view that the view arrived at by the court below is perverse and the court has,,,

committed a manifest error of law and ignored the material evidence on record. A duty is case upon the appellate court, in such circumstances, to",,,

re-appreciate the evidence to arrive at a just decision on the basis of material placed on record to find out whether any of the accused is connected,,,

with commission of the crime he is charged with.,,,

In the light of the aforesaid principles laid down, we have considered the evidence and materials on record. Upon such analysis, in our",,,

consider view, trial court committed a serious error in ignoring the material evidence and the conclusions arrived at by the trial court in so far as,",,,

Accused No. l, 4 and 7 is wholly untenable calling for interference by us.",,,

Observing that not merely when findings of the trial court is perverse and even when there was an erroneous approach and on appreciation of,,,

evidence if the High Court comes to a contrary conclusion, the High Court can record conviction, in State of Maharashtra Vs. Sujay Mangesh",,,

Poyarekar, , the Supreme Court held as follows:-",,,

Now, so far as powers of the appellate court in an appeal against acquittal are concerned, no restrictions have been imposed by the Code on",,,

such powers while dealing with an order against acquittal. In an appeal against acquittal, the High Court has full power to re-appreciate, review",,,

and re-weight at large the evidence on which the order of acquittal is founded and to reach its own conclusion on such evidence. Both questions of,,,

fact and of law are open to determination by the appellate court.,,,

It is no doubt true that in a case of acquittal, there is a double presumption in favour of the respondent-accused. Firstly, the presumption of",,,

innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed innocent unless he is,,,

proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further",,,

reinforced by the trial court (and certainly not weakened). Nonetheless, it is not correct to say that unless the appellate court in an appeal against",,,

acquittal under challenge is convinced that the finding of acquittal recorded by the trial court is ""perverse"", it cannot interfere. If the appellate court",,,

on re-appreciation of evidence and keeping in view well-established principles, comes to a contrary conclusion and records conviction, such",,,

conviction cannot be said to be contrary to law.,,,

Applying the ratio of the above decisions, in our considered view, acquittal of Accused No. 1,4 and 7 and acquittal of Accused No. 2 and 3 u/s.",,,

120(B) IPC is perverse. Upon re-appreciation of evidence and keeping in view the well established principles, we are of the view, the order of",,,

acquittal for the offence of conspiracy is to be reversed.,,,

Challenging the order of acquittal PW8-Amudhavanan has filed Crl. R.C. No. 648/2008 u/s. 401 Cr. P.C. praying to set aside the Judgment,,,

of acquittal.,,,

U/s. 401 (3) Cr. P.C, High Court cannot convert the finding of acquittal into one of conviction. Jurisdiction of High Court insofar as revisional",,,

jurisdiction is concerned is very limited. High Court in revision can set aside the order of acquittal at the instance of private party though State may,,,

not have preferred appeal; but this power could be exercised only in cases when there is a glaring defect in the procedure or error in law. [Vide,,,

1997 (1) LW (Crl) 49 [A. Somy Thevar v. Siva Kumar and another].,,,

In the instant case, since State has preferred appeal against acquittal U/s. 378 Cr. P.C., we do not propose to elaborate further upon the",,,

revision.,,,

Upon evaluation of evidence, we are of the considered view that acquittal of Accused No. l, 4 and 7 is perverse and is leading of facts and",,,

evidence. The conclusion insofar as Accused No. l, 4 and 7 is unreasonable and unsustainable warranting interference by us.",,,

In the light of the well established principles of re-appreciation of evidence, in our considered view that the findings of the trial court acquitting",,,

Accused No. l, 4 and 7 are based on erroneous views resulted in ignoring the legal and admissible evidence and therefore, acquittal of Accused",,,

No. l and 4 cannot be sustained. As co-conspirator, Accused No. l and 4 is found guilty under Sec. 120[B] IPC [Charge No. l and 2]. Accused",,,

No. l-Veldurai and Accused No. 4-Arumugam are found guilty U/s. 302 r/w. 120(B) IPC[2 counts] [Charge Nos. 11 & 13]; Accused No. l and,,,

4 are also held guilty U/s. 307 r/w. 120(B) IPC [Charge No. 16].,,,

We have already held that the prosecution has proved Accused No. 7- S.A. Raja was party to the conspiracy and that only at his instance,,,

the conspiracy has been hatched. For the commission of murder of Aladi Aruna and Ponraj and for the attempt on the life of PW6-Socra-tes as,,,

co-conspirator, Accused No. 7 is found guilty under Sec. 120[B] IPC [Charge No. l]. Accused No. 7 is also found guilty U/s. 302 r/w. 120(B)",,,

IPC [2 counts] and U/s. 307 r/w. 120(B) IPC. [Charge Nos. 10,14 and 17].",,,

Question of sentence:-,,,

For the conviction U/s. 302 IPC and 302 r/w. 34 IPO-Learned Sessions Judge imposed death sentence upon Accused No. 2 and 3. Referring to,,,

Machhi Singh''s case [1983 SCC (Cri) 681], trial court held that the aggravating circumstances overwhelmingly supersede the mitigating",,,

circumstances. For imposing death sentence, trial court referred to the following aggravating circumstances :-",,,

Deceased Aladi Aruna was a popular personality and former Minister holding sizeable influence in the locality.,,,

Murder was committed in an extremely brutal, grotesque, diabolical and dastardly manner and the occurrence has caused arousing of intense and",,,

extreme indignation of the people of the locality.,,,

There was no other alternative except to impose death sentence.,,,

In Bachan Singh Vs. State of Punjab, , the Constitution Bench considered the following circumstances as aggravating circumstances which",,,

may call for imposition of death penalty:,,,

(i) if the murder has been committed after previous planning and involves extreme brutality; or,,,

(ii) if the murder involves exceptional depravity; or,,,

(iii) if the murder is of a member of any of the armed Torces of the Union or of a member of any police force or of any public servant and was,,,

committed-,,,

(i) while such member or public servant was on duty; or,,,

(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member,,,

or public servant whether at the time of murder, he was such member or public servant, as the case may be, or had ceased to be such member or",,,

public servant; or,,,

(iv) if the murder is of a person who had acted in the lawful discharge of his duty u/s 43 of Code of Criminal Procedure, 1973, or who had",,,

rendered assistance to a Magistrate or a public officer demanding his aid or requiring his assistance u/s 37 and Section 129 of the said Code.,,,

On the other hand, the following circumstances were considered as mitigating factors:-",,,

(i) That the offence was committed under the influence of extreme mental or emotional disturbance;,,,

(ii) The age of accused. If the accused is young or old, he shall not be sentenced to death;",,,

(iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;,,,

(iv) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the,,,

conditions (iii) and (iv) above;,,,

(v) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence;,,,

(vi) That the accused acted under the duress or domination of another person;,,,

(vii) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the,,,

criminality of his conduct.,,,

Later in Machhi Singh''s case [1983 SCC (Cri) 681], capital punishment was held to be justified only in ""rarest of rate case"".",,,

In order to apply the guidelines provided in Bachan Singh Vs. State of Punjab, , two questions were considered relevant in Machhi Singh''s",,,

case [ 1983 SCC (Cri) 681] which are as follows:-,,,

(i)Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?,,,

(ii) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to,,,

the mitigating circumstances which speak in favour of the offender?,,,

The following guidelines, which would have to be applied to the facts of each individual case where the question of imposition of death",,,

sentence arises:,,,

(i)The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.,,,

(ii) Before opting for the death penalty the circumstances of the ''offender'' also require to be taken into consideration along with the circumstances,,,

of the ''crime''.,,,

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be,,,

an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to",,,

impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the,,,

relevant circumstances.,,,

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be,,,

accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is,,,

exercised. [See Babu, s/o. Raveendran v. Babu, s/o. Bahuleyan, 2003 (3) Cri 285 (SC)].",,,

To award death sentence, the Court should always ask itself the following questions and then test it to determine whether it is a rarest of rare",,,

case, which warrants death sentence to the accused. They are : (i) Is there something uncommon about the crime which renders sentence of",,,

imprisonment for life inadequate and calls for a death sentence? and (ii) Whether the circumstances of the crime are such that there is no alternative,,,

but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?,,,

[Vide Chandrasekar @ Sekar v. State of Tamil Nadu, rep. by the Inspector of Police, 2003 (3) Cri 134 (Mad) (DB) : 2003 1 L.W. (Cri.) 389].",,,

Referring to various case laws in (2009) 2 MLJ (Cri) 1092 [S.K.S. Bariyar v. State of Maharashtra], the Supreme Court has summarized the",,,

position as under:-,,,

We have previously noted that the judicial principles for imposition of death penalty are far from being uniform. Without going into the merits,,,

and demerits of such discretion and subjectivity, we must nevertheless reiterate the basic principle, stated repeatedly by this Court, that life",,,

imprisonment is the rule and death penalty an exception. Each case must therefore be analyzed and the appropriateness of punishment determined,,,

on a case-by-case basis with death sentence not to be awarded save in the ''rarest of rate'' case where reform is not possible....,,,

Contending that the present case is not ''rarest of rare'' case warranting capital punishment, learned counsel for Accused No. 2 and 3 relied",,,

upon the decisions 1983 SCC (Cri) 681 [Machhi Singh and others v. State of Punjab]; (1984) 1 MLJ (Crl) 623 (Mad) : 1984 L.W. (Crl.) 214,,,

[Gurusamy Naicker v. The Superintendent of Central Prison, Palayamkottai and others]; (2001) 2 SCC 28 [Mohd. Chaman v. State(NCT of",,,

Delhi]; Prem Sagar Vs. Dharambir and Others, ; Amrit Singh Vs. State of Punjab, ; 2007 (1) Cri 54 (SC) [Acharaparambath Pradeepan and",,,

another v. State of Kerala]; 2007 (4) Cri 131 (SC) [Des Raj v. State of Punjab]; 2008 (1) Cri 10 (SC) : 2008 1 L.W. (Crl.) 491 [Mayakaur,,,

Baldevsingh Sardar and another v. The State of Maharashtra]; 2008 (3) Cri 215 (SC) : 2009 1 L.W. (Crl.) 1 [Swamy Shraddananda @ Murali,,,

Manohar Mishra v. State of Kar-nataka]; 2008 (3) Cri 245 (SC) [Devidas Ramsundar Shukla v. State of Maharashtra] and (2008) 1 MLJ (Crl),,,

892 (SC) [Kulwinder Singh v. State of Punjab].,,,

Observing that balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised, in (2007) 2",,,

SCC (Cri) 590 [Bablu @ Mubarik Hussain v. State of Rajasthan], the Supreme Court held as follows:-",,,

A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be,,,

accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is,,,

exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered, (a) Is there something uncommon",,,

about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?; (b) Are the circumstances of the crime,,,

such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak,,,

in favour of the offender?,,,

The above decisions would make it clear that the Court should see the choice as to which one of the two punishments provided for murder is,,,

the proper one in a given case will depend upon the particular circumstances. All the mitigating and aggravating circumstances should be,,,

considered. The court should see whether there is anything uncommon about the crime which renders the sentence of imprisonment for life,,,

inadequate and calls for death sentence. The court must take note of aggravating and mitigating circumstances to prepare a balance sheet for,,,

awarding sentence.,,,

In the light of the well settled principles, let us now examine the instant case -whether it warrants imposing capital punishment. We do not find",,,

that the reasons assigned by the trial court disclose any special reasons for imposing death sentence. The discretion conferred upon the Court in,,,

making choice of the sentence. The discretion granted to the court must be exercised judiciously. Requirement of law to assign reasons should not,,,

therefore be an empty formality.,,,

The circumstances in which capital punishment can be imposed is well settled. Capital punishment can be imposed when there are aggravating,,,

circumstances such as accused having criminal record in the past, the manner of committing the crime, shocking conscience of the public, the",,,

question would be whether case of the accused could be one of ''rarest of rare'' cases so that death sentence is required to be imposed.,,,

In the instant case, for imposing death sentence the learned Sessions Judge assigned the reasons:- (i) deceased Aladi Aruna was a public",,,

personality; (ii) murder was cold blooded and diabolical. Mere fact that deceased was a public figure is not a ground for imposing death sentence.,,,

Like wise, it was cold blooded and diabolical is also not a ground for imposing death sentence.",,,

Number of Supreme Court cases could be enumerated where ''death penalty'' was modified as ''life imprisonment''. Some of which are:-,,,

In Ujjagar Singh v. State of Punjab [2007 (14) SCALE 428 - the accused had been convicted of murder and rape and accordingly sentenced to,,,

death by the lower Courts. Supreme Court in appeal, acquitting the accused only of the charge of rape because of the lack of evidence, noted that",,,

since the charge of rape formed a substantial portion of reasoning for causing the death, the death sentence on the accused could no longer be",,,

sustained, once he was acquitted on that charge. The sentence was accordingly altered to one of life imprisonment.",,,

In Amrit Singh v. State of Punjab (2007) 1 MLJ (Crl) 634 : Amrit Singh Vs. State of Punjab, ] - the accused had raped a minor girl. The victim",,,

died a painful death because of bleeding from her private parts. The Court, however, noted that the accused might not have had the intention of",,,

murdering the victim, but her death was only the unfortunate inevitable consequence of the crime, hence it did not fall within the rarest of rate cases.",,,

In Bishnu Prasad Sinha and Another Vs. State of Assam, - Supreme Court commuted the death penalty of the accused on the ground that the",,,

prosecution case was entirely based on circumstantial evidence.,,,

In State of Maharashtra Vs. Prakash Sakha Vasave and Others, -the accused had brutally attacked with axes the husband of their sister, who was",,,

having an illicit relationship with another woman. The trial court had found two of the accused guilty and sentenced them to death. In appeal the,,,

High Court acquitted the accused because of lack of evidence. This Court in appeal set aside the judgment of acquittal passed by the High Court,,,

but noticed that the case before it did not fall in the rarest of rare and deserved only a life imprisonment.,,,

Referring to various decisions, in (2009) 2 MLJ (Crl) 1092 (SC) [Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra], even in a",,,

case of diabolical murder committed, death sentence was modified as life imprisonment.",,,

Though the murder was planned one and for gain, in our considered view the present case cannot be said to be one of ''rarest of rare'' case",,,

warranting imposition of capital punishment. Death sentence imposed upon Accused No. 2 and 3 is altered to one of life imprisonment.,,,

R.T. No. 2/2008:-,,,

In exercise of powers u/s. 368(b) Cr. P.C. ''death sentence'' imposed upon Accused No. 2 and 3 [Appellants in CA. Nos. 209 & 237/2008,,,

respectively] in S.C. No. 62/2006 dated 16.04.2008 on the file of Principal Sessions Judge, Tirunelveli is altered to one of life imprisonment'' on",,,

each of Accused No. 2 and 3 and to pay fine of Rs. 5000/- each in default to undergo R.I. for six months.,,,

C.A.Nos.237/2008 [Accused No. 2-Bala @ Balamurugan]:-,,,

In the result, Conviction of Accused No. 2 u/s. 302 IPC [Charge No. 9] is confirmed and conviction u/s. 302 r/w. 34 IPC [Charge No. 13] is",,,

altered into conviction u/s. 302 r/w. 120(B) IPC. Conviction u/s. 307 IPC [Charge No. 15] and u/s. 341 IPC [Charge No. 7] are also confirmed.,,,

For the conviction u/s. 302 [Charge No. 9]and 302 r/w. 120(B) IPC [Charge No. 13] death sentence imposed upon Accused No. 2-Bala @,,,

Balamurugan [Appellant in C.A. No. 237/2008] is altered into life imprisonment in each count and to pay fine of Rs. 5000/- each in default to,,,

undergo six month R.I. Each of the life imprisonment is ordered to run concurrently.,,,

For the conviction u/s. 307 IPC [Charge No. 15], ten years R.I. imposed upon Accused No. 2 is modified as three years Rigorous Imprisonment.",,,

Conviction of Accused No. 2 u/s. 341 IPC [Charge No. 7] and sentence imposed upon Accused No. 2 is confirmed.,,,

All the sentences in respect of Accused No. 2 are ordered to run concurrently.,,,

C.A. Nos. 209/2008 [Accused No. 3-Alagar @ Valarntha Alagar]:-,,,

In the result, Conviction of Accused No. 3 u/s. 302 IPC [Charge No. 12] is confirmed and conviction u/s. 302 r/w. 34 IPC [Charge No. ll] is",,,

altered into conviction u/s. 302 r/w. 120(B) IPC. Conviction u/s. 307 IPC [Charge No. 15] and u/s. 341 IPC [Charge No. 7] are also confirmed.,,,

For the conviction u/s. 302 [Charge No. l2]and 302 r/w. 120(B) IPC [Charge No. ll] death sentence imposed upon Accused No. 3-Alagar @,,,

Valarntha Alagar [Appellant in C.A. No. 209/2008] is altered into life imprisonment in each count and to pay fine of Rs. 5000/- each in default to,,,

undergo six month R.I. Each of the life imprisonment is ordered to run concurrently. For the conviction u/s. 307 IPC [Charge No. 15], ten years",,,

R.I. imposed upon Accused No. 3 is modified as three years Rigorous Imprisonment. Conviction of Accused No. 3 u/s. 341 IPC [Charge No. 7],,,

and sentence imposed upon Accused No. 3 is confirmed. All the sentences in respect of Accused No. 3 are ordered to run concurrently.,,,

C.A. No. 270/2008:-,,,

In the result, Acquittal of Al-Veldurai, A4-Arumugam and A7- S.A. Raja is reversed and the appeal preferred by the State is partly allowed.",,,

Accused No. l-Veldurai:,,,

Accused No. l-Veldurai is convicted U/S.120(B) r/w. 302 IPC [Charge No. l],",,,

302 r/w. 120(B) IPC(2 counts) [Charges No. 11 & 13] and 307 r/w. 120(B) IPC [Charge No. 16].,,,

No separate sentence is imposed for conviction u/s. 120(B) r/w. 302 IPC [Charge No. l].,,,

Al-Veldurai is sentenced to undergo life imprisonment in each count for the conviction u/s. 302 r/w. 120(B) IPC [Charges No. l1 & 13] and to,,,

pay fine of Rs. 5000/-each in default to undergo six months R.I. Each of the life imprisonment is ordered to run concurrently.,,,

For the conviction u/s. 307 r/w. 120(B) IPC [Charge No. 16], Al-Veldurai is sentenced to undergo three years Rigorous Imprisonment.",,,

Conviction of Accused No. l-Veldurai u/s. 25(lB) (a) of Arms Act and sentence imposed upon him is confirmed.,,,

All the sentences in respect of Accused No. l are ordered to run concurrently.,,,

Accused No. 4-Arumugam:,,,

Accused No. 4-Arumugam is convicted u/s. 120(B) r/w. 302 IPC [Charge No. 2], 302 r w. 120(B) IPC(2 counts) [Charges No. l & 13] and",,,

307 r/w. 120(B) IPC [Charge No. 16].,,,

No separate sentence is imposed for conviction U/S. 120(B) r/w. 302 IPC [Charge No. 2].,,,

A4-Arumugam is sentenced to undergo life imprisonment in each count for the conviction u/s. 302 r/w. 120(B) IPC [Charges No. 11 & 13] and,,,

to pay fine of Rs. 5000/- each in default to undergo six months R.I. Each of the life imprisonment is ordered to run concurrently.,,,

For the conviction u/s. 307 r/w. 120(B) IPC [Charge No. 16]/ A4-Arumugam is sentenced to undergo three years Rigorous Imprisonment.,,,

All the sentences in respect of Accused No. 4 are ordered to run concurrently.,,,

Accused No. 7- S.A. Raja: Accused No. 7- S.A. Raja is convicted u/s. 120(B) r/w. 302 IPC [Charge No. l], 302 r/w. 120(B) IPC(2 counts)",,,

[Charges No. 10 & 14] and 307 r/w. 120(B) IPC [Charge No. 17].,,,

No separate sentence is imposed for conviction u/s. 120(B) r/w. 302 IPC [Charge No. l].,,,

A7- S.A. Raja is sentenced to undergo life imprisonment in each count for the conviction u/s. 302 r/w. 120(B) IPC [Charges No. 10 & 14] and to,,,

pay fine of Rs. 5000/-each in default to undergo six months R.I. Each of the life imprisonment is ordered to run concurrently.,,,

For the conviction u/s. 307 r/w. 120(B) IPC [Charge No. 17], A7- S.A. Raja is sentenced to undergo three years Rigorous Imprisonment.",,,

All the sentences in respect of Accused No. 7 are ordered to run concurrently.,,,

Accused No. 5, 6 & 8: Acquittal of Accused No. 5-Paramasivan, Accused No. 6-Kannan and Accused No. 8-Arjunan is confirmed. Learned",,,

Principal Sessions Judge, Tirunelveli is directed to take steps to secure Accused No. 1, 4 and 7 and commit them to prison to undergo the period",,,

of sentence imposed.,,,

Crl. R.C. No. 648/2008:-,,,

In view of the conclusions in C.A. No. 270/2008, the Crl. R.C. No. 648/2008 is disposed.",,,