2005 (1) TMI 673 - HC - Indian Laws

Murder - seeking grant of bail application u/s 439 CrPC - motive for the commission of the crime - Confessional statements of co-accused - Applicability of Section 10 of the Evidence Act - witness statements - HELD THAT - There is absolutely no evidence or material collected so far in investigation which may indicate that the petitioner had ever shown any resentment against the deceased for having made allegations against either his personal character or the discharge of his duties as Shankaracharya of the Mutt. The petitioner having kept absolutely quiet for over three years it does not appeal to reason that he suddenly decided to have Sankararaman murdered and entered into a conspiracy for the said purpose. 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. Here the confessions of A-2 and A-4 were recorded long after the murder when the conspiracy had culminated and therefore Section 10 of the Evidence Act cannot be pressed into service. However we do not feel the necessity of expressing a concluded opinion on this question in the present case as the matter relates to grant of bail only and the question may be examined more deeply at the appropriate stage. The material placed before us does not indicate that the talk was with A-6 and A-7 who are alleged to have assaulted the deceased or with A-5 A-8 A-9 and A-10 who are alleged to have been standing outside. Learned counsel has also submitted that there are two other witnesses who have heard the petitioner telling some of the co-accused to eliminate the deceased. The names and identity of these witnesses have not been disclosed on the ground that the interrogation is still in progress. However these persons are not employees of the Mutt and are strangers. It looks highly improbable that the petitioner would talk about the commission of murder at such a time and place where his talks could be heard by total strangers. Thus we are of the opinion that prima facie a strong case has been made out for grant of bail to the petitioner. The appeal is accordingly allowed and the impugned order of the High Court is set aside.

Issues Involved:
1. Rejection of bail petition u/s 439 Cr.P.C.
2. Alleged conspiracy and motive for murder.
3. Evidence of letters and complaints.
4. Withdrawal of money and its use.
5. Confessional statements of co-accused.
6. Applicability of Section 10 of the Evidence Act.
7. Dying declaration.
8. Telephone conversations and witness statements.
9. Considerations for granting bail.

Summary:

1. Rejection of bail petition u/s 439 Cr.P.C.:
The petitioner's bail petition was rejected by the Madras High Court on 8.12.2004. The petitioner, Shankaracharya of Kanchi Mutt, was arrested on 11.11.2004 in connection with the murder of Sankararaman.

2. Alleged conspiracy and motive for murder:
The prosecution alleged that the petitioner conspired with co-accused to murder Sankararaman due to various complaints made by the deceased against the petitioner's personal character and his functioning as Shankaracharya. The prosecution relied on 39 letters allegedly recovered from the deceased's house.

3. Evidence of letters and complaints:
The court found that the recovery of letters from the deceased's house does not prove they were received by the petitioner. There was no evidence that the petitioner showed any resentment towards the deceased's complaints over three years.

4. Withdrawal of money and its use:
The prosecution initially claimed that Rs. 50 lakhs was withdrawn from the Mutt's ICICI Bank account to pay hirelings. However, later they stated that the money was received as an advance for land sale. The court found that the entire Rs. 50 lakhs was deposited in Indian Bank on 7.5.2004, contradicting the prosecution's claim.

5. Confessional statements of co-accused:
The prosecution relied on confessions of Kathiravan (A-4) and Ravi Subramaniam (A-2). A-4 retracted his confession, and the court noted that confessions of co-accused are weak evidence and cannot solely sustain a charge.

6. Applicability of Section 10 of the Evidence Act:
The court noted that Section 10 requires prima facie evidence of conspiracy before using acts or statements of conspirators against each other. The confessions were recorded after the conspiracy culminated, making Section 10 inapplicable.

7. Dying declaration:
The prosecution cited a statement by S. Vaidyanathan under Section 164 Cr.P.C., claiming it as a dying declaration. The court found it inadmissible as it did not relate to the cause of death or circumstances of the transaction resulting in death.

8. Telephone conversations and witness statements:
The prosecution mentioned phone conversations between the petitioner and co-accused and statements by undisclosed witnesses. The court found no material indicating talks with the actual assailants and doubted the credibility of statements by strangers.

9. Considerations for granting bail:
The court considered the nature of the offence, evidence, and circumstances peculiar to the accused. It found a strong prima facie case for granting bail, noting that the petitioner should not visit the Mutt premises or possess a passport until the charge sheet is filed.

Conclusion:
The appeal was allowed, and the petitioner was granted bail with conditions. The court emphasized that its observations were only for deciding the bail petition and should not influence the trial court's final decision.

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