Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. When we analyse the statements of PW! and PW65, they are not contradictory to each other, rather they are complementary to each .other. Merely.because PW65 did not see PW! until the accu·sed 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 PW! 's presence to the police at that time. This fact is quite natural as in the commotion, he had made a police call only td infonri the police about the incident and could not provide details for the same.
13. The fact that PW I 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 PW! in the complaint such omission is not fatal in the face of otherwise cogent and convincing evidence of PW!, 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 PW I and PW65. PW I'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 c brightness of the place of incident from where PW I witnessed it and whether it was possible for her to see the assailants at night from a distance of about I 00 feet. This aspect has been dealt with by the High Court in great details and we agree with the High Court that PW! 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 I 0 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 c 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 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 kn iv es as stated by PW I 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. PWI 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 PW I 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 T!Psjointly, oron 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. PW! 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 A 13, 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 SHEIKH SINTHA MADHAR@JAFFER@SINTHA ETC. v. STATE REP. BY INSP. OF POLICE [PJNAKI CHANDRAGHOSE, J.] by A I 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.
19. An important witness of the conspiracy is Sayeed Ibrahim (PW36), a purse manufacturer, who stated that he knew A I 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 Al, 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 A I, 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 Al toA6, went to Mukkombu and was told that the decision to kill Dr. Sridharwas 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, AS 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.
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 A'I who had a blood-stained shirt in his hand and they were accompanied by AS. 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 PW3 7 and they were supported c by PW! 7 (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 A I to A6 and the Courts below were correct in convicting B · them for the offence of conspiracy. Also, the murder of Dr. Sridhar was proved by the aid of the eye-witnesses. The conviction of A I to A6 is based on proper appreciation of evidence and requires no interference. c
22. Now, we shall discuss the culpability of A 7 under Sections 147 and I 09 read with 302 !PC, though he was acquitted of the charges of conspiracy with AS to A 13. The prosecution alleged that A 7 was standing unarmed when A I to A6 were attacking the deceased and therefore he was charged with Section 147 !PC and not with Section I 4S IPC. PW! has stated in hertestimonytliat 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 A 7 as well in the Court, but she did not state that he was the one standing unarmed, as is the case of the prosecution. A 7 was already acquitted ,of the charges of conspiracy with the second group i.e. AS to A 13. l:-le thus cannot be linked at all with the common object of Al toA6 who had hatched a separate conspiracy. Also, PW65 did not identify A 7 or any other accused in the Court.
23. Regarding the conviction of A 7 for the offences under Section I 09 read with Section 302 !PC, it has to be considered that AS to A 13 had been acquitted of this charge and the same reason shall apply for the acquittal of A 7 as well, as this charge relates to the second group. A 7 had been charged for the offence under Section I 09 read with Section 302 !PC along with A8 toA13 on the basis of the conspiracy hatched at Tirunelveli, but when AS to A 13 have been acquitted, A 7 must also be acquitted as the abetment is with reference to the conspiracy. 24.Also, when the offence of Section 147 !PC is not proved beyond reasonable doubt, A Ts presence becomes doubtful and if that is the case, he cannot be made liable for abetment to commit murder by A I to A6. The conviction of A 7 is, therefore, set aside and he is acquitted of all the charges and is directed to be set at liberty. SHEIKH SINTHA MADHAR@JAFFER@SINTHA ETC. v. STATE REP. BY 947 INSP. OF POLICE [PINAKI CHANDRAGHOSE, J.]
25. Jn the light of the above discussion, we find no ground to .A interfere with the judgment passed by the High Court so far as it has confirmed the conviction and sentence of A I 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 c_onviction of A 7, is set aside. Criminal Appeal No.2117 of2009 is, accordingly, allowed. A 7 is already released on bail granted by this Court on 4'' July, 2011. His bail bond shall stand discharged. Nidhi Jain Appeals disposed of.