Somasundaram @ Somu vs State Rep.By Dy.Comm.Of Police

Out of all the accused persons who were tried by the Sessions Court, only three, i.e., Manickam @ Poonga Nagar Manickam (hereinafter referred to as “A-3”), Somasundaram (hereinafter referred to as “A-4”) and Bomb Selvam (hereinafter referred to as “A-15”) are in appeal before us. Since we are only required to examine the correctness of the conviction and sentences as against these three accused persons, we shall restrict to the appreciation of facts and evidence relevant to these three accused persons only. The facts of the incident leading up to the case, the arrest of the accused persons followed by their trial and conviction are stated as under:

On the basis of the statement of A-5, the FIR was altered and the offences under Sections 120B read with Sections 364, 365, 302 and 201 of IPC were added to the same. Subsequently, the rest of the accused persons were arrested on the basis of the statements of the witnesses. A-3 was arrested on 25.03.2002 and his statement was recorded, which is produced as Ex. P-

20. On the basis of the evidence of A-3, M.O. 12- Maruti Zen Car, under mahazar Ex. P-6 was recovered on the same day. On 01.04.2002, A-3 and A-1 were remanded to police custody as per the order of the Magistrate for a period of ten days. A-4 was arrested on 09.04.2002 from Chrompet Railway Station. His statement was recorded as Ex.P-34 in the presence of PW-9. On the basis of the disclosure made in the statement, M.O.-6, Ford Escort Car bearing Registration No. TN-10-F-5555 was recovered, which has been produced as Ex. P-19. A-15 was arrested on 25.04.2002 from near the Egmore Railway Station, from where he was taken to the office of the CBCID. On the basis of the disclosure made in the statement of A-15, a ‘Tiruvalluvar Hero Honda 6475’, marked as M.O.-10 and a black coloured Reebok shoe, marked as M.O.- 1, kept inside the side box of that motor cycle were recovered.

7. The Trial Court, after examining the evidence produced on record, convicted and sentenced A-1 to A-11 and A-13 to A-17, as specified in the table referred to supra. A-12 and A-18 were acquitted of all charges. The accused persons preferred appeals against their conviction and the State preferred an appeal against the acquittal of A-12 and A-18 before the High Court. The High Court, after consideration of the evidence placed on record, upheld the order of conviction and sentence passed by the learned Sessions Judge against all the accused, except A-10. A-10 was acquitted of all the charges by the High Court. The appeals filed were accordingly, dismissed. The High Court, in the impugned judgment and order relied on the testimony of PW-1, the son of the deceased, who spoke about the fact that his father went on his usual morning walk but did not return and the testimony of PW-13, who saw the deceased walking. The next crucial link, according to the High Court is provided from the evidence of Venugopal (PW-

4. On 25.3.2002, at about 8.15 a.m., Manickam A-3, was arrested and his confessional statement Ex. P-20 came to be recorded on the basis whereof MO- 12 Maruti zen car was seized vide memo Ex. P-6. On the same day the IO also recorded the statement of PW-32 who was Lusker in the Corporation of Chennai, and the proprietor of vermicelli factory T.K.P. Food Products, Mudichur, namely, Krishnapandi PW-34. Accused No.9 was arrested and as per his information furnished under section 27 of the Evidence Act, Maruti van TN-22-B-8853 was recovered from V.R. Pandian PW-18, in the presence of Sriramulu PW-25. On the basis of confessional statement of A-3 dated 5.4.2002, recovery of MOs. 28 to 33 vide memo Ex. P-36 was made. Somu @ Somasundaram A-4, had been arrested on 9.4.2002 at about 6 a.m. at Chrompet Railway Station. His confessional statement Ex. P-34 had been recorded in the presence of PW-9 and recovery of MO-6 Ford Escort car No. TN-10-F-5555 was made vide memo Ex. P-9. Bomb Selvam A-15, was arrested on 24.4.2002 and his confessional statement Ex. P-50 was recorded in the presence of PW-44. Pursuant to information furnished by him, recovery of MO-10 Hero Honda bike was made vide memo Ex. P-51. Other accused persons were also arrested from time to time. Their confessional statements were also recorded and recoveries made. Ultimately, after investigation, final report was filed. In the course of trial, the prosecution examined all the 67 witnesses. Documents Ex.P-1 to P-86 were exhibited and articles MOs. 1 to 39 were produced consisting of six cars : MO6 Ford Escort Car TN 10F 5555; MO7 Golden colour Maruti van TN 22P 8853, MO8 Maruti van TN 02 0343; MO9 Maruti van TNA 7484; MO-12 Maruti Zen TN 02 Z99; Tata Sumo car TN-04 D 9657; Motorcycle MO-10 – Hero Honda; tape-recorder; suitcase; bedpan; chain; iron cot; photo of M.K. Balan; TTK cassettes; 2 pants, 2 shirts, one dhoti, knife, charger, mobile phones etc. were recovered. Accused abjured their guilt and pleaded innocence.

3. In the house 2-3 persons were also there. They went inside the house. Manickam A-3 was telling to the persons who were present there and Udayakumar A-9 that ex-MLA M.K. Balan has to be brought as some money was to be collected from him. After that PW-10 and PW-11 went and sat in the car. After about half an hour A-9 came. Manickam A-3 also came out who went out in Ford Escort car of Venugopal PW-10 which had been given by him on rent. They followed the said car. Venugopal PW-10, Newton PW-11 and A-9 followed the said car of A-9. Other persons who were present in the meeting at the residence of Manickam, came by another car. They were Somasundaram A- 4, Shankar A-6, and Sampath A-11. When they were travelling by a car, Manickam A-3 called A-9 over phone and asked him to come to the temple at N.S.C. Bose Road. Venugopal PW-10, Newton PW-11 and Udayakumar A-9 went to the temple. After sometime Manickam A-3 brought two men and one woman in the Ford Escort car. Four persons came in the car, went to a temple and came out after worship. Thereafter Manickam travelled in the same car. They followed them. The persons accompanying A-3 were Senthil Kumar A-1, Hariharan A-2 and Romita A-12. A-12 was dropped at Chintadripet and the car ultimately reached Woodlands Drive Hotel. Then PW-10 and PW-11 left for their respective places. By that time Manickam A-3 told A-9 to follow and went along with Senthil Kumar A-1 and Hariharan A-2 in the Ford Escort car. A-3 came alone to the hotel by the car then Venugopal, Newton and Udayakumar came by the car of A-9 to Tambaram. A-9 again contacted PW-10 over phone on the next day, and requested him to get the key of the house belonging to one Chowdry of Mahalakshmi Nagar. Accordingly, PW-10 and PW- 11 collected the said key from Chowdry and waited in the house for A-9 to come. At around 7 p.m., Manickam A-3, A-9 and A-1 came with one more person by Ford Escort car along with A-5. A-3 introduced Venugopal and Newton to A-1 by referring him as a big VIP known as Senthil Kumar and that they should not talk to him. A-3 also asked Venugopal PW-10 to arrange food for Senthil Kumar and to do other works for him. Balamurugan A-5 served the food to A-1. Since mobile connection was not available for Senthil Kumar A- 1 at the said place, he was made to stay in the house of A-9, Cell No. used by Senthil Kumar A-1 was 9840230709.

1. I have gone through the opinion of my esteemed Brother but I find myself unable to agree with the same. In my opinion judgment-order of conviction of Trial Court affirmed by the High Court deserves to be upheld.

2. The appellants are aggrieved by their conviction. They have been convicted and sentenced, as noted by my learned Brother, for commission of abduction and murder of one Shri M.K. Balan, former Member of Legislative Assembly. In all, 18 accused were put to trial. The trial court acquitted Romita Mary accused No.12 and Ganesan accused No.18 and convicted the remaining accused. The appeal filed by accused No.10, namely, Leela Shankar, has been allowed by the High Court and with respect to remaining 15 appellants, the same has been dismissed; thereby maintaining the conviction and sentence imposed by the trial court. Out of the convicted accused, only three accused Manickam @ Poonga Nagar Manickam A-3; Somasundaram A-4; and Bomb Selvam A-15 are in appeal before us. Senthil Kumar A-1 and Manickam were highly influential figures and the murder is a high profile political murder involving various personalities.

5. In the light of the legal position so adumbrated by this Court, we deem it necessary, in the interest of justice, that the High Court should consider the appeal filed by the respondent all over again. This is to enable the respondent to canvass regarding the conviction under Section 364 of the Indian Penal Code also. If the conviction is to be maintained the High Court has to consider how far the presumption mentioned above will apply to the situation of this case. For enabling the High Court to reconsider the appeal afresh we set aside the impugned judgment. The appeal filed before the High Court shall stand remitted to the High Court.”

In re: Commission of offence under section 387 IPC

Effect of acquittal under section 120B

53. Holding test identification parade has been proved by Krishnasamy-PW-

57. Thus in my opinion the appeals preferred by appellants sans merits hence, liable to be dismissed. The appeals are hereby dismissed. The conviction and sentence imposed by the Trial Court as affirmed by the High Court calls for no interference in the appeals.