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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.

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  

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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-

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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  

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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  

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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  post-

incident conspiracy was also proved and there were no such irregularity  

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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-

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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  

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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  

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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 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.

15. The  next  question  is  regarding  the  weapon  of  murder  not  

conforming to the post-mortem report  opinion.  The post-mortem was  

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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  

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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  

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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.

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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  

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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  

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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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