2005(1) Crimes 113 (SC)
Supreme Court of India
(From Madras High Court)
R.C. Lahoti, CJI, G.P. Mathur & P.P. Naolekar, JJ.
Jayendra Saraswathi Swamigal —Appellant
versus
State of Tamil Nadu —Respondent
Criminal Appeal No. 44 of 2005
(Arising out of SLP (Crl.) No. 6192 of 2004)
Decided on 10-1-2005

Important point
Confession of a co-accused cannot be treated as substantive evidence and can be pressed into service only when the Court was inclined to accept other evidence and feels necessity of seeking for an assurance in support of its conclusion.

Headnote:Criminal Procedure Code, 1973—Section 439—Murder of Incharge ­Administrative Manager of Devaraja­swamy Devasthanam on 30.8.2004 by assault by A6 and A7 who were armed with aruval—Petitioner who was Shankaracharya of Kanchi Mutt was arrested on a charge of conspiracy in that murder—Motive for crime was various complaints alleged to have been made by deceased both against personal character of petitioner and his style of functioning as Shankaracharya of Mutt—Finally deceased was alleged to have sent a letter on 30.8.2004 to petitioner as “last warning” narrating several incidents—Prosecution claimed that of those 39 letters, 5 were found in office of HR & CE, Chennai which related to period 14.8.2001 to 23.1.2002, one from residence of A4 and two from residence of petitioner—Recovery of letters from house of deceased himself was not a proof that they were actually received by petitioner and were in his knowledge—Deceased was not employee of Mutt—Prosecution failing to point out any material that petitioner had an amount of Rs. 50 lakh of Mutt which was alleged to have been paid to hired assassins—A4 though gave a confession recorded u/s 164 Cr.P.C. that petitioner wanted deceased to be killed but he retracted confession after 5 days—Confession of other accused A2 implicating petitioner in terms of Section 30, Evidence Act would be a weak evidence and could be pressed into service if Court was inclined to accept other evidence—Only when there was prima facie evidence that the person was a party to conspiracy before his acts or statements could be used against his co-conspirator—Confessions of A2 and A4 were recorded long after the murder when the conspiracy had culminated and therefore Section 10 of Evidence Act could not be pressed into service—Telephonic conversation which deceased had with a witness a few days before murder to the effect that “if any danger came to him, Jayendra alone will be responsible” since did not relate to cause of his death or to any of circumstances of the transaction which resulted in his death, same did not come within purview of Section 32(1) of Evidence Act—It would be highly improbable that petitioner would talk about commission of murder where it could be heard by total stranger who was even not an employee of Mutt—Prima facie case for grant of bail was made out for petitioner—Petitioner directed however to not to visit Mutt till charge-sheet was filed and to deposit his pass-port in Court.

       Held : When the special leave petition was heard for admission on 17.12.2004, a detailed order was passed by this Court, wherein the State was directed to give particulars of the bank account wherefrom money is alleged to have been withdrawn by the petitioner for payment to the assailants and also to produce the copy of the account and the passbook, if any, seized by the investigating agency. However, in the statement in reply which has been filed in this Court by the State on 6.1.2005, a different stand is taken that an agreement had been entered into for sale of 50 acres of land belonging to Kanchi Janakalyan Trust to Bhargava Federation Pvt. Ltd. for Rs. 5 crores, wherein an advance of Rs. 50 lakhs in cash was received on 30.4.2004 and an endorsement regarding receipt of the said amount was made on the reverse side of the first page of the agreement. It was this money which was retained in cash by the petitioner all along from which payment was made to the hirelings after the conspiracy was hatched soon after the receipt of the alleged letter dated 30.8.2004 sent by the deceased which was described as “last warning”. No documents of the account in ICICI bank have been produced in support of the plea which was twice taken by the prosecution before the High Court while opposing the prayer for bail made by the petitioner. N. Sundaresan (A-23) who is Manager of the Mutt was arrested on 24.12.2004 and was produced before the Judicial Magistrate, Kanchipuram at 1.45 p.m. on 25.12.2004. He stated before the Magistrate that he had received Rs. 50 lakhs in cash on 30.4.2004 and the said amount was deposited in Indian Bank, Sankara Mutt Branch on 7.5.2004. Learned counsel for the petitioner has placed before the Court copies of two accounts bearing Nos. 124 and 125 which the Kanchi Kamakothi Peetham Shri Sankaracharya Swam has in the Indian Bank at No. 1, Salai Street, Kanchipuram. This statement of account shows that on 7.5.2004 an amount of Rs. 28,24,225/- was deposited in cash in account No. 124 and an amount of Rs. 21,85,478/- was deposited in cash in account No. 125. Thus the total amount which was deposited in cash comes to Rs. 50,09,703/-. Learned counsel has explained that in addition to Rs. 50 lakhs which received in cash an extra amount of Rs. 9,703/- was deposited in order to liquidate the overdraft over which penal interest was being charged by the bank. The statement of account clearly shows that after deposit of the aforesaid amount the entire overdraft was cleared. This clearly shows that the entire amount of Rs. 50 lakhs which was received in cash on 30.4.2004 was deposited in Bank on 7.5.2004. This belies the prosecution case, which was developed subsequently after the order had been passed by this Court on 17.12.2004 directing the State to produce copy of the ICICI Bank account, that the cash money was retained by the Petitioner from which substantial amount was paid to the hirelings. (Paras 7 and 8)

       The opening words in Section 10 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. No worthwhile prima facie evidence apart from the alleged confessions have been brought to our notice to show that the petitioner along with A-2 and A-4 was party to a conspiracy. The involvement of the petitioner and A-2 and A-4 in the alleged conspiracy is sought to be established by the confessions themselves. (Para 12)

       Shri Tulsi has also submitted that there is also evidence of dying-declaration in order to fasten the liability upon the petitioner and for this reliance is placed upon the statement of S. Vaidyanathan, which was recorded under Section 164 Cr.P.C. on 28.12.2004. This witness has merely stated that he knew deceased Sankararaman and used to talk to him and further that at 1.30 p.m. on 3.9.2004 Sankararaman contacted him over phone and told him that his petition presented to HR & CE Department was numbered and if any danger came to him, Jayendra alone will be responsible for the same. Since the ­telephonic conversation which the Sankararaman had with this witness, did not relate to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, the same does not come within the purview of Section 32(1) of the Evidence Act and is not admissible in evidence. (Para 13)

       Result : Appeal allowed.