Sunday, 26 March 2017

Whether test identification parade will be vitiated if two accused are identified in same TIP?

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. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 2118-2119 OF 2009
SHEIKH SINTHA MADHAR @ JAFFER @
SINTHA 
V
STATE REP. BY INSPECTOR OF POLICE 
Dated:April 13, 2016.
Citation:(2016) 11 SCC265


1. 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”).
2. 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).
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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 postincident
conspiracy was also proved and there were no such irregularity
in the Test Identification Parades which would vitiate the case of the
prosecution.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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 hustlebustle
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.
15. The next question is regarding the weapon of murder not
conforming to the post-mortem report opinion. The post-mortem was
9Page 10
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.
16. 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.
17. 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.
18. 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
11Page 12
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.
19. 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.
12Page 13
20. 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.
21. 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.
22. 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
13Page 14
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.
23. 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.
14Page 15
24. 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.
25. 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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