The foremost question and the irrefutable answer

On 12th November 2004, Thuglak's Cho Ramaswamy said ? Jayalalithaa would not have authorized the arrest of Shankaracharya if there weren't substantial evidence?. He had more faith in Jayalalithaa's administrative discipline than in Shankaracharya's adherence to Dharmic path.

Jayalalithaa, taking shelter under Rule 110 of the Assembly Rules barring a debate on a subject on which a Statement had been made by a Minister, declared in the Legislative Assembly that there were ?clinching evidence' all of them leading to the Shankaracharya.

Even now, many are asking the question ?Will the Police that too under Jayalalithaa arrest the Shankaracharya without ?clinching evidence'??

Let us seek an answer to this foremost question lingering in some minds, coming out from some mouths and being answered variedly on the basis of faith and facts by many. The Supreme Court's prima facie opinion on the matter expressed in the bail order provides us the most authentic answer so far.

The main evidences trumpeted by the police and published by the media are as under:

1.
a) From 12th November 2004 till 3rd January 2005, the Prosecution was saying that money was drawn from out of the ICICI Bank account of the Matham and paid to the hired gang. The amount was not a constant figure, some times they said it was Rs 10 lacs, some times it was stated to be Rs 30 lacs, and some times it was stated to be Rs 50 lacs.
b) From 3rd January 2005 to 10th January 2005, the prosecution was saying that the cash advance or Rs 50 lacs for the sale of a land of the Matham was retained in the Shankaracharya's room from May 2004 until September 2004 and the same was paid to the hired gang.
c) From 10th January 2005, the police say that a sum of Rs 5 lacs was paid to the hired gang through Ravi Subramaniam.
2. On 12th November 2004, the Police claimed that the false accused were paid money drawn from the account of the Matham with ICICI Bank and the currency notes with ICICI Bank slips have been recovered from the false accused.
3. As on 12th November 2004, the Police claimed that there are evidences of cell phone conversations between the Acharya and the hired gang.
4. On 12th November 2004, the Police claimed that there were confession statements that were recorded before the Magistrates under Section 164 of Cr PC, implicating the Senior Acharya.
5. On 12th November 2004, the Police claimed that the motive was well established by the 39 letters written by Sankararaman.
6. As on 12th November 2004, the Police claimed that there was a dying declaration by the deceased.

Let us look at all these ?evidences? and see where the truth is. On 10th January 2005, the Supreme Court passed the bail order and in that order most of the above points have been dealt with.

1. a) From 12th November 2004 till 3rd January 2005, the Prosecution was saying that money was drawn from out of the ICICI Bank account of the Matham and paid to the hired gang. The amount was not a constant figure, some times they said it was Rs 10 lacs, some times it was stated to be Rs 30 lacs, and some times it was stated to be Rs 50 lacs. The Supreme Court's order says thus:

?.......In the two orders passed by the High Court by which the bail petitions were rejected, the plea of the State that the money was withdrawn from the account of the Mutt in ICICI Bank, Kanchipuram for payment to the hirelings is clearly mentioned. 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.?

Thus it has been established before the Supreme Court that the Police arrested the Acharya on the presumption that the money was paid out of the ICICI Bank account of the Matham, and maintained the same position many times before the remanding Magistrate's Court and got the Acharya remanded from time to time. The maintained the same position twice before the High Court and got the bail petition dismissed both the times. The Police maintained the same position on 17.12.2005 also before the Supreme Court, but when the Supreme Court asked the Police to prove the point with evidence, since they had no evidence, the placed a different story before the Supreme Court.

1 b) From 3rd January 2005 to 10th January 2005, the prosecution was saying that the cash advance or Rs 50 lacs for the sale of a land of the Matham was retained in the Shankaracharya's room from May 2004 until September 2004 and the same was paid to the hired gang.

The following is the relevant portion of the Supreme Court's order:

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 Kamakoti Peetham Shri Sankaracharya Swamy 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.

Thus it has been established before the Supreme Court that the Police arrested the Acharya without any evidence for having paid the money for the murder. If there is no evidence for the payment of the money even until 10th January 2005, while the Acharya had been arrested on 11th November 2005, how do we justify the arrest? Is not the arrest arbitrary and illegal? Has not the Police misled the remanding magistrate many times, the High Court twice and the Supreme Court once? Should not the law take any course in the matter of Police misleading the Courts one after the other?

1 c) From 10th January 2005, the police say that a sum of Rs 5 lacs was paid to the hired gang through Ravi Subramaniam.

This is after the order of the Supreme Court as referred to above. Ironically, this contention is based on Ravi Subramaniam's ?judicial confession? statement recorded under Section 164 of the Cr.P.C. before the Magistrate on 31st January 2005. The Police filed the counter affidavit before the Supreme Court on 3rd January 2005, the Supreme Court heard the bail petition on 6th January 2005 and passed the order on 10th January 2005. Why did the prosecution press this ?fact? before the Supreme Court? So far the Police always misrepresented to the Courts on this issue and now there is active concealment. This is enough evidence as to the veracity of this claim. The fact is that this also would have vanished had the prosecution stated this before the Supreme Court.

2. On 12th November 2004, the Police claimed that the false accused were paid money drawn from the account of the Matham with ICICI Bank and the currency notes with ICICI Bank slips have been recovered from the false accused.

The Matham has no account with the ICICI Bank. This fact has been adequately established before the Supreme Court and the High Court.

3. As on 12th November 2004, the Police claimed that there are evidences of cell phone conversations between the Acharya and the hired gang.

Even this claim has fallen before the Supreme Court. The following are the relevant excerpts:

Shri Tulsi, learned senior counsel for the respondent, has also referred to certain other pieces of evidence which, according to him, showed the complicity of the petitioner with the crime in question. He has submitted that the petitioner had talked on phone to some of the co-accused. 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.

The Police theory is falling apart like a pack of cards hit by a Domino's effect. We reiterate that the arrest of the Senior Pontiff at the first instance is arbitrary.

4. On 12thNovember 2004, the Police claimed that there were confession statements that were recorded before the Magistrates under Section 164 of Cr PC, implicating the Senior Acharya.

As on the date of arrest of the Acharya, there was no judicial confession with the Police at all. Kathiravan gave his judicial confession in camera under Sec. 164 Cr PC on 19th November 2004. He also retracted it on 24th November 2004 in the open Court. Here is the excerpt from the Supreme Court's order:

The prosecution also relies upon confessional statement of Kathiravan (A-4) recorded under Section 164 Cr.P.C. on 19.11.2004, wherein he stated that he went to the Kanchi Mutt on 1.9.2004 and in the presence of Ravi Subramaniam and Sundaresan, the petitioner said that Sankararaman had written letters and had filed cases and it was not possible for him to bear the torture any longer and, therefore, he should be killed on the same day. It is important to mention here that A-4 retracted his confession on 24.11.2004 when his statement was again recorded under Section 164 Cr.P.C. The prosecution also relies upon confession of Ravi Subramaniam (A-2) which was recorded on 30.12.2004 wherein he made a similar statement that the petitioner offered him Rs.50 lakhs on 1.9.2004 for getting rid of Sankararaman.

?????..

???????.. 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. The correct import of Section 10 was explained by the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor AIR 1940 PC 176 as under:

????????..Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference."

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.
Similar would be the position with regard to the judicial confession of Ravi Subramaniam.

5. On 12th November 2004, the Police claimed that the motive was well established by the 39 letters written by Sankararaman.

The Supreme court observed thus:

In order to establish the aforesaid motive for commission of crime, the prosecution relies upon copies of 39 letters which were allegedly recovered from the house of the deceased himself. What the prosecution claims is that the deceased used to keep copies of all the letters and complaints which he made against the petitioner and it is these copies which have been recovered from the house of the deceased. The prosecution claims that of these 39 letters or complaints 5 complaints were found in the office of HR&CE, Chennai which relate to the period 14.8.2001 to 23.1.2002, one in the residence of A-4 and 2 in the residence of the petitioner. In our opinion, the recovery of these letters from the house of the deceased himself is not a proof of the fact that they were actually received by the petitioner or were brought to his notice. The deceased was not an employee of the Mutt but was working as In-charge Administrative Manager of another Dharamsthanam which has nothing to do with Kanchi Mutt and at least since 1998 he had no connection with the said Mutt. Though according to the case of the prosecution, the deceased had started making complaints against the petitioner since August 2001, there is absolutely no evidence collected in investigation that the petitioner made any kind of protest or took any kind of action against the deceased. Even otherwise, many letters or complaints etc. are addressed to people holding high office or position and it is not necessary that they read every such letter or complaint or take them seriously. 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.

A vast majority of the letters that the Police rely are found in the desk of the deceased! And the Police called this as evidence enough to arrest the Acharya. When even while going to the Supreme Court the Police has no evidence of the Acharya having ever said anything ill of Sankararaman, what was the basis on which the Police fixed the motive on the Acharya and arrested him on 11th November 2004? We reiterate that the arrest is arbitrary as on 11th November 2004.

6. As on 12th November 2004, the Police claimed that there was a dying declaration by the deceased.

The Supreme Court observes thus:

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.

This exposes hollowness in the Police and Jayalalithaa's claim that they had ?clinching evidence? before they arrested the Acharya. The fact is that they never had any such evidence, for it does not exist.