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Friday, April 15, 2016

after the Coimbatore serial blasts, a conspiracy was hatched to do away with Dr. Sridhar (deceased), who was BJP Town Secretary at Trichy, and also actively involved in the propagation of the Hindu religion in the town. There were a total of 13 accused that hatched conspiracies in two separate groups to kill Dr. Sridhar and curb the growth of BJP in the city.=Regarding the conviction of A7 for the offences under Section 109 read with Section 302 IPC, it has to be considered that A8 to A13 had been acquitted of this charge and the same reason shall apply for the acquittal of A7 as well, as this charge relates to the second group. A7 had been charged for the offence under Section 109 read with Section 302 IPC along with A8 to A13 on the basis of the conspiracy hatched at Tirunelveli, but when A8 to A13 have been acquitted, A7 must also be acquitted as the abetment is with reference to the conspiracy.- when the offence of Section 147 IPC is not proved beyond reasonable doubt, A7’s presence becomes doubtful and if that is the case, he cannot be made liable for abetment to commit murder by A1 to A6. The conviction of A7 is, therefore, set aside and he is acquitted of all the charges and is directed to be set at liberty. In the light of the above discussion, we find no ground to interfere with the judgment passed by the High Court so far as it has confirmed the conviction and sentence of A1 to A6. Criminal Appeal Nos.2118-2119 of 2009 are, accordingly, dismissed. However, the judgment of the High Court so far as it concerns the conviction of A7, is set aside. Criminal Appeal No.2117 of 2009 is, accordingly, allowed. A7 is already released on bail granted by this Court on 4th July, 2011. His bail bond shall stand discharged.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL NOS. 2118-2119  OF 2009

SHEIKH SINTHA MADHAR @ JAFFER @

SINTHA  ETC.                                       APPELLANT(S)

                                   VERSUS

STATE REP. BY INSPECTOR OF POLICE         RESPONDENT(S)

                                    WITH

                      CRIMINAL APPEAL NO. 2117 OF 2009

SHAHJAHAN                                                APPELLANT(S)

                                   VERSUS

STATE REP. BY INSPECTOR OF POLICE       RESPONDENT(S)



                               J U D G M E N T

Pinaki Chandra Ghose, J.

These appeals, by special leave, have been  directed  against  the  judgment
and order dated 22.02.2008 passed by the Madras High Court,  Madurai  Bench,
in Criminal Appeal No.1736 of 2003 and  Criminal  Appeal  No.1807  of  2003,
whereby  the  High  Court  dismissed  the  criminal  appeals  filed  by  the
appellants  and  confirmed  their  conviction  and  sentences  for   various
offences punishable under Sections 148, 302, 201  and  120B  of  the  Indian
Penal Code, 1860 (hereinafter referred to as “IPC”).

The brief facts necessary to dispose of these appeals  are  that  after  the
Coimbatore serial blasts, a conspiracy was  hatched  to  do  away  with  Dr.
Sridhar (deceased), who was BJP Town Secretary at Trichy, and also  actively
involved in the propagation of the Hindu religion in the town. There were  a
total of 13 accused that hatched conspiracies  in  two  separate  groups  to
kill Dr. Sridhar and curb the growth of BJP in the city.  A1  to  A6  formed
one group and hatched a conspiracy under the leadership of  A1.  The  second
group was formed under the guidance  of  A8  and  included  A7  to  A13  who
conspired at  Tirunelveli.  Both  these  groups  had  planned  to  kill  the
deceased in two separate conspiracies at two different places. In  pursuance
of the conspiracy, A1 to A7 formed an  unlawful  assembly  on  2.2.1999  and
attacked the deceased at about 10 p.m. when he was returning back  from  his
clinic. A1 to A6 attacked the deceased with  weapons  in  pursuance  of  the
common object and caused his death and A7 stood nearby unarmed.  As  claimed
by the prosecution, this incident was  witnessed  by  the  daughter  of  the
deceased (Lakshmi Priya-PW1), neighbours of the deceased  (Domnic  Raja-PW2,
Sagayarajan-PW3 and Dr. Soundirarajan-PW65) and the  night-watchman  in  the
area (Mr. Marimuthu-PW5).

After investigation, Police filed charge-sheet against all  the  13  accused
persons. Upon considering the material on record and hearing the counsel  on
both  sides,  the  accused  persons  were  charged  for   various   offences
punishable under Sections 148, 302, 201 and 120-B of the  IPC.  The  charges
were read over and explained to them. All the accused persons  pleaded  ‘not
guilty’ and claimed for trial.

The Trial Court by its judgment and order  dated  7.10.2003,  convicted  and
sentenced the accused/appellants for the offences as follows: A1 to  A6  for
the offences punishable under Sections 120-B read with Section 302,  Section
148 and  Section  302  IPC.  A3  and  A6  were  acquitted  of  the  offences
punishable under Section 201 read with Section 302  IPC.  A7  was  convicted
for the offence punishable under Section  147  and  Section  109  read  with
Section 302 IPC. However, he was acquitted of the charges under Section 120-
B read with 302 and Section 201 read with Section 302 IPC.  A8 to  A13  were
acquitted of all the charges framed against them.

The matter came up  before  the  Madras  High  Court  (Madurai  Bench)  vide
Criminal Appeal No.1736 of 2003 filed by A5 and Criminal Appeal  No.1807  of
2003 filed by A1, A2, A3, A4, A6 and A7.  No appeal was filed by  the  State
against the acquittal of A8 to A13. The High Court by the impugned  judgment
and order dismissed both the appeals on the ground that the prosecution  had
established beyond reasonable doubt that A1 to A6 had conspired to kill  Dr.
Sridhar and A7 was a part of the unlawful assembly and participated  in  the
murder of Dr. Sridhar (deceased).  Since  the  conspiracy  and  murder  were
proved, the High Court refused to interfere with the judgment of  the  Trial
Court.

Aggrieved by the judgment and order dated 22.02.2008 passed  by  the  Madras
High Court, the accused have filed the appeals  before  this  Court  against
their conviction and sentence. Criminal  Appeal  Nos.2118-2119  of  2009  is
filed by A1 to A6 and Criminal Appeal No.2117 of 2009 is filed  by  A7.   We
shall first discuss the culpability of A1 to A6 and subsequently  deal  with
the conviction and sentence of A7.

 Mr. Sidharth Luthra and Mr. Ratnakar Das, learned senior counsel  appearing
on behalf of appellants A1  to  A6  have  inter  alia  reiterated  that  the
judgments of the Trial Court as well as the High  Court  were  erroneous  as
the prosecution had been unable to bring home its  case.   He  assailed  the
reasoning given by the High Court in arriving at  a  wrong  conclusion  i.e.
the guilt of the accused on the following grounds: Firstly, the presence  of
PW1 (daughter of the deceased) was doubtful  at  the  spot  as  it  was  not
reflected in the earliest available records and her testimony cannot be  the
sole basis of conviction as it  was  unreliable.  Secondly,  the  number  of
assailants was not clear. Thirdly, due to  the  distance  of  the  place  of
occurrence and insufficient light thereat, the identity of the  accused  was
rendered doubtful and  the  weapon  of  the  murder  was  also  not  clearly
established, being contrary to what was stated in  the  post-mortem  report.
Fourthly, the Test Identification Parade was vitiated in law and delayed  as
well. Fifthly, the conspiracy was not proved. Lastly, the investigation  was
defective and biased and various material documents were suppressed and  the
forensic evidence was also not reliable.

 Mr. Subramonium Prasad, learned senior counsel appearing for the State  has
vehemently rebutted  the  grounds  argued  by  the  learned  senior  counsel
appearing for the appellants and has stated that the motive  and  conspiracy
behind the incident and  the  involvement  of  the  appellants  was  proved,
beyond reasonable doubt, by the testimony of PW-1  as  corroborated  by  PW-
65’s evidence in particular. The post-incident conspiracy  was  also  proved
and there were no such  irregularity  in  the  Test  Identification  Parades
which would vitiate the case of the prosecution.

Mr. M. Karpaga Vinayagam, learned senior counsel appearing on behalf of  A7,
submitted that the offence under Section 147 IPC was not  made  out  against
A7 as the evidence of PW-1, even when corroborated by the  evidence  of  PW-
65, could not establish the identity and presence of A7 at the place of  the
incident. He also argued that since A7 had been acquitted of the  conspiracy
with A8 to A13, his conviction under Section 109 read with Section 302  IPC,
 could not be sustained.

The main issues are whether the conspiracy was proved  or  not  and  whether
the presence of the accused at the place  of  incident  was  established  or
not. We shall deal with A1 to A6 first and subsequently  with  A7.  We  have
perused the oral and documentary evidence on record. We  shall  now  examine
each and every contention in light of the arguments adduced before us.

The first aspect for consideration before us is the testimony  of  the  eye-
witnesses. There were allegedly 5  eye-witnesses  to  the  murder  who  were
examined: the daughter of the deceased (Lakshmi  Priya-PW1),  neighbours  of
the   deceased   (namely,   Domnic   Raja-PW2,   Sagayarajan-PW3   and   Dr.
Soundirarajan-PW65) and the night-watchman in the area (Mr.  Marimuthu-PW5).
PW1 stated that she was studying in her  house  when  she  heard  a  scream-
“Save me”. Realizing that it was of her father, she went  out  of  the  gate
and saw 6-7 persons stabbing her father with  knife-like  weapons.  She  was
standing at about a 100 feet distance from the place of incident and  though
it was around 10 p.m. but still she could clearly see  the  incident  as  it
took place at a spot which was then lit up by  the  tube  lights  of  PW65’s
house. Apart from the lights of PW65’s house, the street lights as  well  as
her own compound lights were on. She  shouted  at  the  accused  persons  to
stop, but they only turned and saw her and thus she could see them  clearly.
After the incident, she saw them going away on their  bikes  and  they  also
took her father’s bike. She immediately went to the house of the  deceased’s
elder brother Shanmugasundaram (informant), who came along with her and  saw
the deceased lying in a pool of  blood.  The  elder  brother  could  not  be
examined as he died before the trial could  commence.  PW1  also  identified
all the seven accused appellants in the Test  Identification  Parade.  PW65,
on the other hand, stated that he heard the distress call  of  the  deceased
and came outside and saw 4-5 persons attacking the  deceased,  but  he  only
saw PW1 when she came near the dead body of her father after the  assailants
had left.

When we analyse the statements of PW1 and PW65, they are  not  contradictory
to each other, rather they are complementary to each other.  Merely  because
PW65 did not see PW1 until the accused had left, does not mean that she  was
not present at  the  place  of  occurrence  and  she  did  not  witness  the
occurrence. She has already stated that she was afraid of her own  life  and
so she was hiding to some extent, and thus, PW65 might not  have  seen  her.
PW65 made a call to the police but did not mention  PW1’s  presence  to  the
police at that time. This fact is quite natural as in the commotion, he  had
made a police call only to inform the police about the  incident  and  could
not provide details for the same.

The fact that PW1 was not named in the inquest report is of  no  consequence
as the inquest report relates to the cause of death and not  the  witnesses’
account of the incident. The first informant though had  not  named  PW1  in
the complaint such omission is not fatal in the  face  of  otherwise  cogent
and convincing evidence of  PW1,  corroborated  by  PW65.  The  other  three
eyewitnesses: PW2, PW3 and PW5 turned hostile during the trial and  did  not
support  the  prosecution  case  at  all,  but  that  does  not  affect  the
statements of PW1 and PW65. PW1’s statement cannot be rejected only  on  the
ground that she is an  interested  witness  as  she  has  been  particularly
corroborated by PW65’s testimony.

The next aspect for our consideration is the distance and brightness of  the
place of incident from where PW1 witnessed it and whether  it  was  possible
for her to see the assailants at night from a distance of  about  100  feet.
This aspect has been dealt with by the High Court in great  details  and  we
agree with the High Court that PW1 could have seen the assailants  at  night
because the area was illuminated by  the  electric  lights  all  around  and
there was sufficient light to see them. Also, the fact that she was  sitting
in an air-conditioned room was not  conclusively  proved  and  it  is  quite
natural that at 10 p.m. in the night, when the roads and  neighbourhood  are
quiet, and there is no hustle-bustle like daytime, even a slight  noise  can
be heard. Thus, the screams of the deceased could  have  been  easily  heard
and identified by his daughter and there was  nothing  unusual  for  her  to
come out and witness the incident, as she was by then already expecting  the
return of her father from the clinic.

The next question is regarding the weapon of murder not  conforming  to  the
post-mortem  report  opinion.  The  post-mortem  was  done  by  PW40  -  Dr.
Vijayalakshmi who stated that many of the injuries  found  on  the  deceased
were all cut injuries and could have been caused by  cutting  weapons,  like
an Aruval and not by knives as stated by PW1 in her testimony.  A  knife  is
essentially used for stabbing but it  can  also  be  used  for  slicing  and
cutting depending upon the manner and angle at which it  is  used.  PW1  had
stated that she saw the accused attacking the  deceased  and  it  cannot  be
technically taken to be stabbing or slicing. The post-mortem  report  states
that most of the wounds are deep cut wounds but the same can be caused by  a
knife. To this extent, the statement of PW1 is corroborated by  the  medical
examination.

The next question is whether the Test Identification Parades  were  vitiated
on account of delay or for holding those TIPs jointly, or on account of  the
identity of the accused having been already revealed before  the  TIP  could
be conducted.  It is clear from the evidence that  there  is  no  inordinate
delay in conducting the TIP. As and when the accused were  arrested,  within
reasonable  time  they  were  produced  for  the  TIP.  Also,  there  is  no
invariable rule that two accused persons cannot be made  part  of  the  same
TIP. Joint TIP would thus, in no manner, affect the  validity  of  the  TIP.
The purpose of a TIP is to ensure that the investigation  is  going  on  the
right  track  and  it  is  merely  a  corroborative  evidence.   The  actual
identification must be done  in  the  Court  and  that  is  the  substantive
evidence. If the accused is already known to the witness, the TIP  does  not
hold much value and it is the  identification  in  the  Court  which  is  of
utmost importance. PW1 identified all the seven accused  appellants  in  the
Court as well as in the TIP.

The fact that the deceased had a few strands of hair in his hand  which  did
not match with any of the accused except A13, who was already  acquitted  by
the Trial Court as well as the High Court, does not hold much ground as  it,
by itself cannot exonerate the accused  only  because  the  samples  do  not
match.


The most important question is whether the conspiracy hatched by  A1  to  A6
was proved or not. A conspiracy is always hatched in secrecy and it is  very
difficult to  gather  direct  evidence  for  the  proof  of  the  same.  The
conspiracy before the incident is proved by the  statements  of  PW23,  PW36
and  PW37.  PW23  was  a  coolie  (daily-wage  worker)  who  had   overheard
indistinct conversations between 6-7 persons in the first week  of  January,
1999, when they had come  to  take  bath  at  the  Mukkombu  Dam.  But  this
witness’s testimony cannot be directly used to implicate the accused  as  he
did not remember their faces and refused to identify them in  Court  because
of fear. The same is the case with PW24 who was a caretaker  at  the  garden
near Mukkombu Dam who also could not identify the accused in the Court.

An important witness of the conspiracy is Sayeed  Ibrahim  (PW36),  a  purse
manufacturer, who stated that he knew A1 to A6. He was a member of  the  Al-
Umma movement which was a banned organization and his  job  was  to  collect
money for the undercover or arrested members of the organization.   In  July
1998, A4 told him to go to Mukkombu to meet  A1,  A2,  A3,  A5  and  A6  and
collect money for some of the convicts in  the  Coimbatore  Blast  Case.  He
then went to Madurai and he heard the discussion between A1, A2 and A4  that
Dr. Sridhar must be killed in Trichy to stop the growth of  the  BJP  party.
Around 20.1.1999, he along with A1 to A6, went  to  Mukkombu  and  was  told
that the decision to kill Dr. Sridhar was finalized.  This  is  corroborated
to this extent by the statements of PW23 and PW24 who stated their  presence
at Mukkombu around that time. Also, after the incident, he saw  A3,  A4,  A5
and A6 in Madurai, where A4 described how  they  murdered  Dr.  Sridhar  and
that A3 hurt his left hand middle finger during the attack.  This  statement
by PW36, who turned an approver, substantiates the allegation of  conspiracy
to murder Dr. Sridhar.

PW37 (John Basha) also testified that on the  date  of  incident  at  around
8:30 p.m., A3 called him up and told him that they have  planned  to  murder
Dr. Sridhar and after that one person will come to  stay  with  him  and  he
should permit him to do so. After the incident, A3 came to PW37 with A4  who
had a blood-stained shirt in his hand and they were accompanied  by  A5.  He
also saw A3 washing six blood-stained knives and a wound on  his  left  hand
middle finger. The injury on the middle finger of A3 was seen by  both  PW36
and PW37 and they were supported by PW17 (the  doctor  who  dressed  up  the
wound on A3’s finger). Though he maintained no records of patients,  but  he
stated that he stitched the wound of A3.

Thus, the conspiracy was proved beyond reasonable doubt  between  A1  to  A6
and the Courts below were correct in convicting  them  for  the  offence  of
conspiracy. Also, the murder of Dr. Sridhar was proved by  the  aid  of  the
eye-witnesses. The conviction of A1 to A6 is based  on  proper  appreciation
of evidence and requires no interference.



Now, we shall discuss the culpability of A7 under Sections 147 and 109  read
with 302 IPC, though he was acquitted of the charges of conspiracy  with  A8
to A13. The prosecution alleged that A7 was standing unarmed when A1  to  A6
were attacking the deceased and therefore he was charged  with  Section  147
IPC and not with Section 148 IPC. PW1 has stated in her testimony  that  6-7
persons were attacking her father. She did  not  state  anything  about  any
particular person standing unarmed or any role played by such person in  the
incident. Though she identified A7 as well in the Court,  but  she  did  not
state that he  was  the  one  standing  unarmed,  as  is  the  case  of  the
prosecution. A7 was already acquitted of the charges of conspiracy with  the
second group i.e. A8 to A13. He thus  cannot  be  linked  at  all  with  the
common object of A1 to A6 who had hatched a separate conspiracy. Also,  PW65
did not identify A7 or any other accused in the Court.

Regarding the conviction of A7 for the offences under Section 109 read  with
Section 302 IPC, it has to be considered that A8 to A13 had  been  acquitted
of this charge and the same reason shall apply for the acquittal  of  A7  as
well, as this charge relates to the second group. A7 had  been  charged  for
the offence under Section 109 read with Section 302 IPC  along  with  A8  to
A13 on the basis of the conspiracy hatched at Tirunelveli, but  when  A8  to
A13 have been acquitted, A7 must also be acquitted as the abetment  is  with
reference to the conspiracy.

Also, when the offence of Section 147 IPC is not  proved  beyond  reasonable
doubt, A7’s presence becomes doubtful and if that is the case, he cannot  be
made liable for abetment to commit murder by A1 to A6. The conviction of  A7
is, therefore, set aside and he is acquitted  of  all  the  charges  and  is
directed to be set at liberty.

In the light of the above discussion, we find no ground  to  interfere  with
the judgment passed by the High  Court  so  far  as  it  has  confirmed  the
conviction and sentence of A1 to A6.  Criminal Appeal Nos.2118-2119 of  2009
are, accordingly, dismissed. However, the judgment of the High Court so  far
as it concerns the conviction of A7, is set aside. Criminal  Appeal  No.2117
of 2009 is, accordingly, allowed.  A7 is already released  on  bail  granted
by this Court on 4th July, 2011.  His bail bond shall stand discharged.
                                      …....................................J

                                                    (Pinaki Chandra Ghose)



                                       …...................................J

                                                  (Amitava Roy)

New Delhi;

April 13, 2016.

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