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2010 (6) Supreme 65
SUPREME COURT OF INDIA
Dr. Mukundakam Sharma and C.K. Prasad, JJ.
S. Arul Raja — Appellant
versus
State of Tamil Nadu — Respondent
Criminal Appeal Nos. 1494-95 of 2009
Decided on : 30-7-2010
(b) Indian Penal Code, 1860 – Section 120-A – Criminal conspiracy –– Conspiracy and motive have to be established. (Para 28)
(1976) 1 SCC 389; (1999) 5 SCC 253 – Relied upon
(c) Evidence Act, 1861 – Section 32(1) – For a statement to be admissible in evidence as a dying declaration, the person making the statement should no longer be alive – a If the person eventually does not die after making the statement, then the same cannot be treated as a dying declaration. (Para 32)
(1999) 3 SCC 54, (1997) 4 SCC 161, (1999) 5 SCC 30 – Relied upon
(d) Evidence Act, 1861 – Section 342 r/w section 164, Cr.P.C. – When a man survives after recording a statement, it cannot be treated as dying declaration – However it can be treated as a statement u/s 164, Cr.P.C. (Para 40)
(2002) 10 SCC 56 – Relied upon
(e) Confessional statement to be admissible must be made voluntarily and not under threat or coercion – Observation of his condition is mandatory. (Paras 43 and 44)
(2007) 12 SCC 230, (2006) 12 SCC 268, (1964) 4 SCR 485 – Relied upon
(f) Extra-judicial confession – Extra-judicial confession made while in police custody cannot be allowed – Moreover, when a case hangs on an extra-judicial confession, corroborated only by circumstantial evidence, then the Courts must treat the same with utmost caution. (Para 47)
(2007) 3 SCC 1; (1974) 4 SCC 443; (1976) 3 SCC 775; (1975) 4 SCC 234; (2009) 8 SCC 383; (1997) 8 SCC 158; (2005) 13 SCC 116; (1998) 6 SCC 108 – Relied upon
(g) Evidence Act, 1861 – Section 10 – Unless the element of conspiracy is established, section 10 cannot be pressed into service – Further, a post-arrest statement would not fall within the ambit of Section 10. (Para 56)
(2002) 7 SCC 334; (1998) 4 SCC 351 – Relied upon
Facts of the case:
1.The Appellant was running several educational institutions in the District of Tirunelveli and Kanyakumari, and had also started an Engineering College at Athiyuthu in 2000. Subsequently, Aladi Aruna himself started an Engineering College, proximate to the one started by the appellant. The relations between both the appellant and Aladi Aruna, who were on good terms until then, were said to have deteriorated after the latter’s direct involvement in the business sphere of the appellant.
2.Furthermore, in the same month in which Anna University granted affiliation to the Engineering College run by Aladi Aruna, it also cancelled the affiliation already accorded to the appellant’s College. Consequently, many students allegedly left the appellant’s College to join the institution run by Aladi Aruna.
3.Appellant has been accused of hatching a conspiracy wherein he engaged Accused No. 1, and deceased accused, Benny, to murder Aladi Aruna.
4.In his dying declrartion A1 implicated the appellant in the crime.
5.The Madras High Court convicted the appellant.
Finding of the Court:
Prosecution failed to establish conspiracy.
Statement of A1 cannot be treated as confessional statement.
Result : Appeals allowed.
JUDGMENT
Dr. Mukundakam Sharma, J. —
1.These appeals are directed against the judgment of the Madurai Bench of the Madras High Court dated 05.08.2009. By the said judgment, the High Court reversed the judgment of acquittal of the appellant passed by the Principal Sessions Judge, Tirunelveli, and convicted the appellant, Arul Raja under Section 302 read with Section 120-B of the Indian Penal Code, 1860 (“IPC”), and sentenced him to undergo life imprisonment and to pay a fine of 5000/- in default to suffer three months’ rigorous imprisonment. He was also convicted under Section 307, read with Section 120- B of the IPC and sentenced to Rigorous Imprisonment for a period of three years.
2.The appellant was convicted for murder, attempted murder, and criminal conspiracy to commit the aforesaid crimes in connection with the death of Sri Aladi Aruna, a former law minister of Tamil Nadu, which occurred on 31.12.2004. The facts in this regard go back to the alleged animosity between the appellant and Aladi Aruna over the years. The Appellant was running several educational institutions in the District of Tirunelveli and Kanyakumari, and had also started an Engineering College at Athiyuthu in 2000. Subsequently, Aladi Aruna himself started an Engineering College, proximate to the one started by the appellant. The relations between both the appellant and Aladi Aruna, who were on good terms until then, were said to have deteriorated after the latter’s direct involvement in the business sphere of the appellant.
3.Furthermore, in the same month in which Anna University granted affiliation to the Engineering College run by Aladi Aruna, it also cancelled the affiliation already accorded to the appellant’s College. Consequently, many students allegedly left the appellant’s College to join the institution run by Aladi Aruna. This situation was also alleged to be responsible for increasing the existing tension between both the appellant and Aladi Aruna.
4.Appellant has been accused of hatching a conspiracy wherein he engaged Accused No. 1, Veldurai (hereinafter referred to as “A1”), and deceased accused, Benny, to murder Aladi Aruna.
5.In pursuance of this alleged conspiracy, Aladi Aruna was murdered on 31.12.2004, by accused persons Nos. 1 to 4, along with deceased accused Benny and Auto Bhaskar, who formed into two groups to commit the act. All of them were subsequently arrested, with the exception of A1 and deceased accused Benny.
In the course of the investigation, it became known that A1 and Benny had fled to Ahmedabad in Gujarat.
6.On the night of 25.1.2005, a team comprising the Gujarat and Tamil Nadu Police entered the flat that housed Veldurai and Benny, and attempted to apprehend them. In the melee that ensued, A1 was arrested, while Benny consumed cyanide. Both were taken immediately to the L.G hospital nearby, where despite being administered treatment, Benny died.
7.In the morning of 26.12.2005, the Executive Magistrate of Ahmedabad City, Mr. Solanki, went to L.G hospital upon receiving a written requisition to record the dying declaration of A1. In his statement made to the Executive Magistrate, A1 implicated the appellant in the crime, and declared that he was given a contract killing by one S.P. Raja for an agreed remuneration of Rs. 5,00,000/- out of which he was paid an advance of Rs. 20,000/-. The Executive Magistrate Mr. Solanki was examined as PW-30 and testified before the Principal Sessions Court at Tirunelveli as to the same.
8.The Executive Magistrate, who took the dying declaration from A1 has also noted that he was “hale and healthy” while his statements were being recorded. A1, it is significant to note, was discharged from L.G. Hospital on the same day, and produced before the Ahmedabad Magistrate for issue of transit warrant to Tamil Nadu.
9.The Madras High Court has convicted the appellant primarily on the basis of this declaration that implicated him in a conspiracy to murder Arul Raja. The High Court also took into acco
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