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.
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.
