Decided on October 23,2002

KAMARAJ Respondents


- (1.)The state is in appeal under section 19 of the TADA Act against the judgment and order of acquittal by the TADA court. The contextual facts depict that accused kamaraj brought the deceased Rajendran to Melaulur and sought for a rented house from Dhakshinamoorthy and the accused has had close links with the deceased rajendran, being a co-participant to the ltte movement. The facts further depict that on 8th August, 1994, one Felix Roger had withdraw a sum of Rs. 50,000/- from indian Bank, Gandhi Road for the purpose of purchasing the land. Around 12.30 p. m. Felix Roger having withdrawn from the bank did put the sum into a white cloth bag and was coming out of the said branch around the same time. It is at that juncture a man of about 51/2 feet tall with robust physique dashed him and relieved him of his bag. On an alarm being raised, rajendran was caught upon a chase red handed though prior thereto certain gun shots were fired thereby injuring PW-34 who fainted on the spot. It is at this stage rajendran, however, eventually shot himself with a bullet injury and thus breathed his last. The present respondent, being accused under TADA, however, has tried to harbour the said Rajendran deceased who happened to be a LITE man. The learned judge, TADA court did go into the matter in rather a great detail and recorded therein that there has been no evidence to implicate the accused with LTTE movement or even with Rajendran as such. A few statements of one or two persons were to the effect that both Rajendran deceased and the accused were seen together. The evidence is delightfully silent on this score and it is this silence which prompted the court to record its suspicion as regards the involvement of the accused and subsequent recovery of armoury from him. The tada court relying upon the principle law as decided by this Court came to a conclusion that it would be quite unsafe to rely on the evidence available on record for the purpose of awarding punishment to the accused under TADA and thus acquitted the accused and set the accused at liberty immediately thereafter. Hence, the statutory appeal under section 19 of the TADA Act by the state.
(2.)Mr. K. Ramamoorthy, learned senior counsel appearing in support of the appeal has been very candid to make his submissions that the entire prosecution case hinges on evidence of PW-41 who happened to be the village administrative officer. The learned judge, TADA court has the following to observe as regards the evidentiary value of the evidence tendered by PW-41 before the TADA court. The learned judge stated as follows:
"It is found in the instant case, that the village administrative officer (PW41) was not loyal either to prosecution or to the defence. No part of his testimony inspired confidence of the court. Therefore, his testimony is fit to be effaced from the records. The fact remains that the prosecution has failed to establish the arrest of the accused on 24.8.94 at Pattukottai bus stand. The alleged recovery of the material objects (M. O. 13 to M. O. 18) also stood not proved. "

(3.)In the course of his submissions Mr. Ramamoorthy further submitted that there is manifest error in appreciation of the evidence by the learned judge of the TADA court having particular reference to PW-41 atleast and he has taken us through the evidence. Incidentally, be it noted that this particular witness was declared hostile and while it is true that though the testimony of the hostile witnesses cannot be stated to have been washed of from the record altogether but it is a duty paramount for the appellate court to see for itself as to whether in fact the evidence available seems to have some acceptability or cred- it worthiness as otherwise the conviction on the basis thereof would be wholly unwarranted. On even a cursory look at the deposition available with us, we are, however, unable to record our concurrence with the submissions of Mr. Ramamoorthy but lend concurrence to the observations of the learned judge since the evidence not only pertains to the nature of improbability but it delve on the region of impossibility and thereby tendering the evidence non-acceptable. Acceptance of the evidence of PW-41 would in any event lead to a manifest error and as also manifest injustice to the accused person since it would result in an absurdity that the village administrative officer who was waiting for a bus at the bus stand would accompany the search party wherein the armaments seized were recovered and then come back to the bus stand record a confessional statement and sign thereon. The place chosen, namely, the bus stand, does not fit in with such instances of recording a confession or even of a search and seizure.

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