Babu vs State

P. Devadass, J.—Since these connected Appeals were directed against the judgment dated 17.11.2006 of the learned I Additional Sessions

Judge(P.C.R.), Thanjavur, in Sessions Case No. 94 of 2001, they were heard together and are being disposed of by this common Judgment.

Originally, there are 7 accused. Since before trial, two accused, namely, Pipe Raja @ Mohamed Salia and Usilaimani @ Jainalavudeen have died,

the remaining accused, namely, A1 to A5 were tried by the learned Additional Sessions Judge and they were convicted and sentenced as detailed

below:-

All the sentences were directed to run concurrently.

In this judgment, throughout, we shall call the appellants as they were arrayed before the Trial court, namely, A1 to A5.

The prosecution case unfurled in the prosecution evidence, may briefly be stated as under:-

(i) Deceased Gurusamy''s sons are P.W. 1 Ilangovan, deceased Gururajan and P.W. 8 Selvam. P.W. 3 Pugazhenthi is P.W. 1''s son. Gururajan is

having his jewellery shop in Kasukkadai Street in Thanjavur. P.W. 1 is having his jewellery shop in the nearby Iyankadai street.

(ii) In Thanjavur, there are two factions of jewellers. Each have association of their own. One was headed by Ganapathy, brother of A. 1 and the

other one was headed by one Ramamurthy, with which deceased Guru Rajan was associated.

(iii) Swaminathan, employee of Dharmalingam was accused of stealing some jewellery from the shop. He was enquired by A-1''s group. He

committed suicide. A-1''s group offered his widow Rs. 25,000/-. She sought the advice of Gururajan. He adviced her to go to police. She

complained to police. A1 and his certain supporters were arrested and remanded. So, A1 had grouse against Gururajan. He told P.W. 8 that he

would kill Gururajan.

(iv) On 27.05.1999, at about 7 p.m., when P.W. 8 crossed A-1''s house, he heard A-1 instructing accused Pipe Raja @ Mohamed Salia and

Usilaimani @ Jainalavudeen (subsequently died) and others that today they have to finish a person. Shortly thereafter, when P.W. 8 returned, the

accused were not there. At about that time, near the Kasukadai street, P.W. 21 Sekar seen A1 instructing the accused similarly.

(v) At about 7.30 p.m., when P.Ws. 1 and 3 were in their shop, people came running shouting that some are attacking the shop of Gururajan.

P.Ws. 1 and 3 rushed there. Inside the shop, a person was stabbing Gururajan with a knife and another person was cutting him repeatedly with an

Aruval. Outside the shop, P.W. 1''s father Gurusamy was assaulted repeatedly with aruval by two persons. The shop was also ransacked.

Showing their weapons, the assailants have threatened P.Ws. 1, 3 and others. A2 to A5 and other accused have fled away. The occurrence was

witnessed to by P.Ws. 6 to 11, 16 to 20, Mohan, Soundher, Selvam, Ganapathi, Senthilkumar, James, Gunasekaran, Muralidharan,

Santhanakrishnan, Ramachandran and Shanmugam.

(vi) P.W. 1 took the injured Gururajan and their father Gurusamy in P.W. 25 Rajendran''s auto to Thanjavur Government Medical College

Hospital. At the hospital, Gururajan passed away.

(vii) At about 9.30 p.m., P.W. 12, Annadurai, took A-1 in his auto, left him, near a tea-shop in Mariamman temple, who talked with two other

persons.

(viii) At about 10 p.m., at the Thanjavur West Police Station, P.W. 1 gave Ex. P1 complaint to P.W. 30 Velu, S.I. of Police. He registered this

case. (Ex. P10 Printed F.I.R.). He sent the F.I.R. to Court through P.W. 26, Constable Sebastian, and a copy of the same to P.W. 31, Inspector

Siva Baskar.

(ix) P.W. 31 took up his investigation. At about 11 p.m., he visited the scene place. Drew Ex. P11 rough sketch. In the presence of P.W. 2

Balakrishnan and one Kamaraj, he prepared Ex. P2 observation Mahazer. Seized blood stained concrete pieces (M.O. 4), plain concrete pieces

(M.O. 5), Dhoti, and glass pieces under Ex-P. 3 mahazer.

(x) At the said hospital, in the presence of panchayatars, P.W. 31 held inquest over the dead body of Gururajan. (Ex. P12 inquest report). He

examined the witnesses and recorded their statement. He handed over Gururajan''s dead body through P.W. 27, Head Constable Chelladurai, to

the hospital for conducting postmortem.

(xi) On 28.05.1999, in the said hospital, P.W. 29 Dr. Gandhi, conducted post-mortem on the dead body of Gururajan and noticed the following

injuries:-

(1) incised cut wound antero posterior in direction 5 x 1/2 cm x bone deep over the right posterior parietal eminance area outer aspect.

(2) Incised cut wound 12 x 1/4 cm x bone deep antero posterior.

(3) Transverse cut wound from middle of wound No. 2 on its left side over the left parietal bone measuring 4 x 1/2 cm X bone deep.

(4) Transversely placed incised cut wound across the posterior end of wound No. 3 over the occipital and left parietal bone.

(5) Incised cut wound L shaped and bewelled 5 cms above roof measuring 3 1/2 x 1/2 cm x bone deep.

(6) Incised cut wound 1 1/2 cm x 1 cm x bone deep vertically over the left frontal area 4.5 cms above the eyebrow

(7) Transversely placed incised cut wound 11 x 1 1/2 cm x bone deep ensuing out fracture left zygomatic arch and cut fracture left auricle upper

3rd to its full thickness.

(8) Contused abrasion 7 x 1 1/2 cm across the left parotied and area.

(9) Bewelled cut wound 2 1/2 x 1 cm x full lip thick obliquely across the middle of the upper lip and ensuing cut injury, in the outer half of the lower

lip on the left side. Upper lip found traumatically removed at the cut side.

(10) Incised cut wound interrupted in a straight line from the outer aspect of right angle of mouth running across the angle of mouth and causing cut

fracture separation of alveolar margin along with middle four teeth in the lower jaw.

(11) Incised cut wound across the middle of neck below the thyroid level 5 x 2 1/2 cm x muscle deep.

(12) Incised cut wound obliquely vertical from the right end of the wound No. 11 running downwards to the right sternoclavicular joint.

(13) Multiple abrasions on the top of left shoulder, front of left shoulder and left shoulder border.

(14) Incised cut wound 3 x 2 1/1 cms x muscle deep on the posterio lateral aspect of left elbow upper part.

(15) Incised cut wound across the medial border of the left hand middle shreening the whole thickness of hypothenar area which includes tenons

vessels and nerves.

(16) Incised cut wound transversely across the posterior aspects of leftindex nail beds left middle finger distal interphalangeal joint and left ring

finger middle phalanx distal area. The distal portion of middle finger traumatically amputated and missing.

(17) Incised cut wound of the web between thumb and index finger 4 x 4 1/4 cm x bon deep.

(18) Incised cut wound along with the medial border of right hand 7 x 1 cm x bone deep mostly on its dorsal aspect.

(19) Incised bewell cut wound in the dorsum distal III of right index finger 2 1/2 x 2 1/2 x muscle deep.

(20) Transverse cut wound across the back of right wrist 6 x 3 cms x bone deep with cut fracture separation of ulnar styloid process.

(21) Vertical linear pressure abrasion 4 x 2 cm on the middle of back of right forearm 15 x 2 cms. On the outer aspect of right elbow and

adjoining arm along with abrasion 2 x 1/2 cms on the back right elbow.

(22) Antero posterior incised stab wound 4 x 2 x 6 cms over the outer aspect of right shoulder border.

(23) Tranansversely placed incised stab wound 7 x 2 cms x cavity deep just right to the T-3 spinal level entering into the thorasic cavity. The injury

is found to cross across the midline entering into left thorasic cavity in the II interspace in its posterior aspect close to the vertebral columns.

Correspondingly it has made incised cut in the posterior surface of left lung upper lobe.

(24) Incised stab wound transversely placed 4 x 1/4 cms x muscle deep 8 cm right to T-11.

(25) Incised cut wound 3 x 1/4 cm x chest cavity deep in the right infra axillary area 4 and 5 rib levels.

(xii) P.W. 29 opined that the deceased would appear to have died of multiple injuries due to shock and haemorrhage. (See Ex. P9 Postmortem

certificate).

(xiii) On 31.05.1999, at the said hospital, Gurusamy passed away. At the hospital, in the presence of panchayatars, P.W. 31 held inquest over his

dead body. (Ex. P13 inquest report). He handed over the dead body through P.W. 28, Head Constable Ganesan, to the hospital for conducting

postmortem.

(xiv) On 31.05.1999, at the said hospital, P.W. 29 conducted post mortem on the dead body of Gurusamy and noticed the following injuries:-

(1) Incised cut wound sutured across the lower 3rd of nose from middle of left ala to the full length of right ala nasal cavity deep cutting across the

cortilages in the septum and ala.

(2) Contused abrasion 1 1/2 cm x 1/2 cm on the right sheek prominence.

(3) Sutured incised cut wound from mid occipital running upwards to the interperietal eminance area measuring 14 cm x 1/2 cm x bone deep.

(4) Laceration 1 1/2 x 1/2 cms area below external occipital protuberance.

(5) Sutured incised cut wound obliquely across the middle of the vault 10 cms x 1 cm x bone deep.

(6) Sutured incised cut wound 2 1/2 cms x 3/4 cms bone deep on the lower aspect of left outer area noticed. Cut fractured outer aspect of left

orbit lower border noticed with diffuse swelling around.

(7) Sutured incised cut wound 1 1/2 cms x 1/4 cms muscle deep on the front of middle of left arm.

(8) Small abrasions scab formed on the outer border of lower 3rd of right forearm and on the fold of right elbow along with transverse abrasion 4

x 2 cms across the right deltoid area with contusion of postero lateral aspect of upper 2/3 of right arm.

(9) Transverse abrasion hair breadth 13 cms x 2 cms across the middle of front of chest.

(10) Transverse abrasion 24 cms x 3 mm across the thoroc olumber area on the back with scab.

(11) On opening the scalp sub scalpal contusion in the fronto parieto occipitio temporal areas with infoction and poruing out oedmesfluid. Further

examination shows fracture from left temporal bone aquamous anterior apart, running across the vault to right posterior parietal eminance and

downwards upto lower occipital area right and involving the left parital bone posterior aspects.

(xv) P.W. 29 opined that the deceased would appear to have died of multiple injuries involving vital organ and their complications. (See Ex. P8

Post-mortem certificate).

(xvi) On 02.06.1999, at about 2 p.m., near Sirai Katha Iyanar temple in Palli Ahraharam, in the presence of P.W. 24 Ramasamy and one

Sachithanandham, P.W. 31 arrested A1 to A3 and accused Pipe Raja @ Mohamed Salia. He recorded EX. P6 confessional statement of Pipe

Raja(EX. P6). In pursuance of its admissible portion, at about 4 p.m., in the presence of said witnesses, from a bush, near the Mariamman temple

road, P.W. 31 seized M.Os. 1 to 3 blood stained weapons under Ex. P7 mahazer. He examined many witnesses and recorded their statement. On

09.06.1999, A-4, accused Usilaimani @ Jainalavudeen have surrendered before Judicial Magistrate, Papanasam. A-5 had absconded.

(xvii) Concluding his investigation, P.W. 31 filed the Final Report against the accused under Sections 120B, 449 and 302 IPC., before the

committal court.

To substantiate the charges, prosecution examined P.Ws. 1 to 31, marked Exs. P. 1 to Ex. P. 18 and exhibited M.Os. 1 to 5.

On the incriminating aspects appearing in the prosecution evidence, each accused has been examined by the Trial court. They have denied their

complicity in this case. They did not examine any witness. The accused have marked Ex. D1 deposition of P.W. 21, Sekar in S.C. No. 189 of

1999.

The trial court, appreciating the evidence of ocular witnesses and other incriminating circumstances produced through prosecution witnesses,

accepted the case of the prosecution and convicted and sentenced the accused as stated already.

According to Mr. S. Ashok Kumar, learned Senior Counsel appearing for A-1, the conspiracy alleged between A-1 and the other accused has

not been established. Motive is a double edged weapon. Suspicion, however, strong is not equivalent to legal proof. Mere motive is not sufficient

to convict a person. There is no acceptable evidence to link A-1 to the deaths.

According to Mr. A. Raghunathan, learned Senior Counsel appearing for A-5, P.W. 1 not named any of the accused in the FIR. The identity of

A-2 and other accused were not known to P.W. 1 and to other eyewitnesses prior to the occurrence. P.W. 1 has not even given the description of

the accused in FIR. In the circumstances, no test identification parade was conducted to corroborate the substantive identification evidence in the

trial court. After lapse of considerable time, for the first time, in the trial court, the witnesses identifying the accused as assailants, shakes the very

credibility of their evidence and no reliance could be placed on their evidence. Many of the eyewitnesses were examined by the Investigating

Officer long after the occurrence. Their evidence is artificial, unnatural. They suffer from inherent improbability.

Mr. M. Karunanidhi and Mr. C. Mayilvahana Rajendran, learned counsels appearing for other accused have adopted the arguments of learned

Senior Counsels.

Mr. K.S. Duraipandian, learned Additional Public Prosecutor contended that this case is entirely based on evidence of eyewitnesses. In the

Court, the eyewitnesses have clearly identified the accused. Although the accused were not named in the FIR, shortly after the occurrence, the

eyewitnesses have stated about them and they also identified them before the trial court. To accept their evidence, it is not an invariable rule that

there should have been test identification parade. Even in the absence of test identification parade, if the substantial evidence of eyewitnesses

inspires confidence in them, their evidence can be accepted. In this case, a strong motive on the part of A-1, who has engaged hirelings A-2 to A-

5 and two others to kill the accused, has been established. This motive also assures the quality of the evidence of eyewitnesses. In the

circumstances, the trial court has rightly convicted and sentenced them.

We have given our anxious consideration to the rival submissions, perused the entire materials on record and the impugned judgment of the trial

court.

In Thanjavur, in Kasukadai street, Gururajan, son of Gurusamy is having his jewelry shop. On 27.05.1999, at about 7.30 p.m., both father and

son were in the shop. They were brutally attacked by certain persons. Gururajan died on his way to the hospital. Subsequently, on 31.5.1999,

Gurusamy died at the hospital.

The evidence of autopsy doctor P.W. 29 Gandhi clearly established that both died due to homicidal violence.

According to the prosecution, due to prior enmity as between A-1 and Gururajan, A-1 hatched conspiracy with the other accused to kill

Gururajan and executed it through the hirelings A-2 to A-5 and two others, namely, Pipe Raja @ Mohamed Salia and Usilaimani @

Jainalavudeen, who have died subsequently and against whom charges were abated and rest of them, namely, A-1 to A-5 took up their trial.

This case is based on the evidence of eyewitnesses, namely, P.Ws. 1 to 3, 6 to 11 and 16 to 20. Among them, P.W. 2 turned hostile.

Although P.Ws. 1, 3, 8, 13 and certain other witnesses are closely related to the deceased, their evidence cannot be doubted or rejected on

that ground unless foundation has been laid for false implication. However, the testimony of such witnesses have to be carefully approached and

analysed to find out whether it is cogent and credible. [See Arumugam Vs. State rep. by Inspector of Police, Tamil Nadu, and Murugan @

Sakthivelmurugan @ Kuchimurugan and Muniasamy @ Chinnamuniasamy Vs. State, .

A-1 and the deceased are jewelers. They are also closely related. They are having their shops in Kasukadai street, Thanjavur. An enmity or

motive as between A-1 and Gururajan has been stated by the prosecution as the reason for the killings.

The evidence of P.Ws. 1, 3 and 13 Elangovan, Pugalendhi and Meenakumari established that among the jewelers in Thanjavur town, there are

two factions. One was headed by Ganapathy, brother of A1 and the other one was headed by Ramamoorthy, whose supporter is deceased

Gururajan. There was no love last between both the factions. In the circumstances, one Swaminathan, employee of Dharmalingam, a supporter of

Ganapathy, was accused of stealing jewels and he was beaten and he has committed suicide, his widow refused the compensation instead as

advised by deceased Gururajan, complained to police and A-1 and his certain supporters were arrested and remanded. It is clearly established

that there was strong motive as between A-1 and deceased Gururajan.

This case is not based on circumstantial evidence. It is based on evidence of eyewitnesses. Motive is a double edged weapon. It could be

either way. The motive pale into insignificance in a case based on the evidence of eyewitnesses. But, it will act as a guide to access the credibility of

the witnesses. But, motive, however, strong may not be sufficient to visit a person with penal consequences.

As regards importance of motive in a case based on the evidence of eyewitness and circumstantial evidence, in Sheo Shankar Singh Vs. State

of Jharkhand and Another, , the Hon''ble Supreme Court held as under:

The legal position regarding proof of motive, as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long

line of decisions of this Court. These decisions have made a clear distinction between cases where the prosecution relies upon circumstantial

evidence on the one hand and those where it relies upon the testimony of eyewitnesses on the other. In the former category of cases proof of

motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution

may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eyewitness account of the

occurrence. That is because if the court upon a proper appraisal of the deposition of the eyewitnesses comes to the conclusion that the version

given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely, even if the prosecution succeeds in

establishing a strong motive for the commission of the offence, but the evidence of the eyewitnesses is found unreliable or unworthy of credit,

existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in

a case which rests on an eyewitness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of

motive in such a situation certainly helps the prosecution and supports the eyewitnesses. See Shivaji Genu Mohite Vs. The State of Maharashtra,

Hari Shanker Vs. State of U.P., and State of U.P. Vs. Kishanpal and Others, ].

The prosecution version is that due to the prior motive, the accused have conspired together to kill the deceased and have also executed their

conspiracy.

Conspiracy is an unlawful pact between two or more persons to do an illegal act or to do a lawful act by illegal means [See Section 120A

IPC]. As per Indian Criminal Law, conspiracy to commit an offence itself is punishable [See Section 120B IPC]. But a mere contemplation in

mind without doing any act in furtherance of conspiracy is not punishable. Conspiracy is generally proved by circumstances leading to the formation

of such an unlawful agreement to commit an offence. Eyewitnesses to prove conspiracy cannot be ruled out. But, it is rare. Conspiracy can be

proved by the facts and circumstances and the sequence of events involved in the case.

To establish the conspiring charge as against the accused, prosecution examined P.Ws. 8, 21, 11 and 12. The occurrence was on 27.05.1999

at about 7.30 p.m. both inside and outside the jewelry shop of deceased Gururajan situate in Kasukadai Street, Thanjavur town. P.W. 8, Selvam

is a son of deceased Gurusamy and a brother of deceased Gururajan. His evidence is that on 27.5.1999 at about 7 p.m., when he was proceeding

from his house to market, via A-1''s house, he heard A-1 instructing A-2 to A-5 and Pipe Raja and Usilaimani that today they have to finish a

person and shortly afterwards when P.W. 8 returned via A-1''s house, the accused were not there. P.W. 21 Sekar is a jewelry shop owner in

Kasukadai Street. His evidence is that on that day at about 7.30 p.m., while he was in his shop, A-1 to A-5 and two other accused were going

towards Kasukadai street and A-1 told accused Pipe Raja that at any cost, today the person has to be finished. According to P.Ws. 8 and 21,

thereafter, the killings have taken place.

As seen above, P.W. 8 is son of deceased Gurusamy and brother of deceased Gururajan. The FIR was lodged by P.W. 8''s brother P.W. 1

Elangovan. They are all living nearby. P.W. 8 also has been examined as an eyewitness. But, if P.W. 8 had really heard the alleged conspiratorial

talk at about 7 p.m. near A1''s house, definitely he would have revealed that to P.W. 1 and that would have been reflected in the FIR. However, in

the FIR, nothing has been stated about the alleged conspiratorial talk between A-1 to A-5 and the other two accused heard by P.W. 8.

In his cross examination, P.W. 21 admits that he deposed in the Sessions Case No. 181 of 1999, in which A-1 is an accused. In the said case,

before the court, in his deposition (Ex. D1), he admits that on the date of killings of Gururajan and Gurusamy, he had gone to Pudukkottai. On the

whole day, on 27.05.1999, P.W. 21 was out of town. So, he could not have heard the alleged conspiratorial talk as stated by him.

P.W. 11, James, an Auto driver in his evidence stated that on 27.05.1999 at about 7.45 p.m., when he was driving his auto via Kasukadai

street, A-1 and other accused tried to enter his auto, but he fastly took away his auto. P.W. 12, Annaduri, also an auto driver, stated that on

27.05.1999 at about 9.30 p.m., A-1 and three others entered his auto and he left them at Mariamman temple.

Both P.Ws. 11 and 12 admit that they have stated about this only on 3.06.1999 when they were examined by police and before that they have

not told that to any one.

Thus, the theory of conspiracy woven by the prosecution and attempted to be proved through P.Ws. 8, 21, 11 and 12 has not been

established.

Now, we shall pass on to the evidence of ocular witnesses. The occurrence was on 27.05.1999 at about 7.30 p.m. in Kasukadai street,

Thanjavur. At about 9 p.m., at the Thanjavur West Police Station, P.W. 1 gave Ex. P. 1 complaint to P.W. 30, Velu, Sub Inspector of Police.

Based upon that, Ex. P. 10, FIR was registered.

In the trial court, P.W. 1 identified A-1 to A-5 and stated that two of them have assaulted his brother inside the jewelry shop and two persons

have assaulted their father Gurusamy just outside the said shop. In his complaint Ex. P. 1, P.W. 1 Elangovan, brother of deceased Gururajan did

not mention the names of the assailants of his deceased brother and father nor mention their identification details or descriptive features or any

distinctive marks. His cross examination reveals that prior to the occurrence, except A-1, he did not know the other accused. If he had witnessed

the occurrence, he would have mentioned the accused or at least their description in the FIR. As stated already, he did not do so. Further, in his

cross examination, P.W. 1 admits that he came to know about A-4 and A-5, Ilavarasan and Babu, who have assaulted their father outside the

jewelry shop only after the occurrence from P.W. 31, Inspector Siva Baskar.

The next eyewitness P.W. 3, Pugalendhi is son of P.W. 1. In the trial court, he also identified the accused as the persons who have assaulted

his grand father and junior paternal uncle. He also stated that A-2 and the accused Pipe Raja have assaulted Gururajan with knives and the two

accused have assaulted his grand father outside the shop. As per the evidence of P.W. 1, at the time of the occurrence, his son P.W. 3 was also

present. While so, he did not mention in his Ex. P. 1 complaint their names.

P.W. 6 Mohan is having his jewelry shop opposite to Gururajan''s shop. He had stated that on hearing loud sound from Gururajan''s shop, he

went there, inside the shop, two persons have assaulted Gururajan with knives and outside the shop, two persons have assaulted Gurusamy with

knives, when he shouted at them, the accused outside the shop threatened him and he had seen A-2 to A-5 in the occurrence place. But, in his

cross examination, P.W. 6 stated that he came to know about the accused on the next day of the occurrence from persons talking in the

Kasukadai street and from the newspaper reports.

P.W. 7, Sounder, also a jewelry shop owner in Kasukadai street. He had stated that on the occurrence day, in Gururajan''s shop, A-2 and the

accused Pipe Raja assaulted Gururajan with knives and A-3 and accused Usilamani assaulted Gurusamy and two persons wielding knives

threatened him, so he ran away from the scene. In his cross examination, P.W. 7 admits that only after the occurrence, he came to know about the

accused, their names and addresses during investigation.

P.W. 8 Selvam stated that on the occurrence day, A-2 and accused Pipe Raja stabbed his brother Gururajan with knives and A-3 and

accused Usilaimani assaulted their father Gurusamy outside the shop and showing their knives, A-4 and A-5 threatened him and the crowd

gathered there. But, in his cross examination, P.W. 8 admits that prior to occurrence, except A-1 he did not know others, he came to know about

them only three days after the occurrence.

P.W. 9 Karunanidhi, also has his jewelry shop in Kasukadai Street. He had stated that at the time of occurrence he had seen four accused

walking near Gururajan''s shop with knives and they have threatened the crowd gathered there. In his cross examination, P.W. 9 admits that before

that he did not know them and their names and he came to know about them when P.W. 31 conducted inquest over the dead body of Gururajan.

P.W. 10, Senthilkumar is also a jewelry shop owner in Kasukadai street. He had stated that A-1 was standing at the junction of Sakkanaicken

street and Kasukadai street and he was looking towards Gururajan''s shop, at about that time, six unknown accused came running and threatened

the crowd with knives. In his evidence, P.W. 10 admits that he did not know the names of the six accused. P.W. 10 also admits that he stated

about the accused only for the first time on 1.06.1999 when P.W. 31, the I.O. examined him.

P.W. 11, Auto driver James stated that he had seen two persons assaulting Gururajan inside his shop and their father was assaulted outside the

shop. In his cross examination, P.W. 11 admits that before that he did not know any one of them. He also admits that he had stated about he

having witnessed the occurrence only for the first time on 3.06.1999 when police examined him.

P.W. 12, auto driver Annadurai, who has identified the accused in the court as the persons who have assaulted the deceased, in his cross

examination, admits that he did not know the accused before and he told about the accused for the first time on 3.06.1999 when police examined

him.

P.W. 16, Gunasekaran, who has his jewelry shop in Kasukadai street, in his evidence described the occurrence and also stated that Pipe Raja

and A-2 assaulted Gururajan with knives and A3 and accused Usilaimani assaulted Gurusamy, A-4 and A-5 were waiting outside the shop and

when he gone to save the victims, he was threatened by A-4 and A-5. Before that, except A-1, he did not know the other accused. In his cross

examination, P.W. 16 also admits that he had told about the accused and the occurrence only for the first time when he was examined by police on

4.6.1999.

P.W. 17, Muralidharan, a shop keeper in Kasukadai street ultimately admitted that he did not remember the accused.

P.W. 18, Santhanakrishnan, a shop keeper in Kasukadai street, in his evidence had stated that two accused have assaulted Gururajan inside

his shop and two accused have assaulted Gururajan''s father Gurusamy outside the shop and two other accused threatened them. But in his cross

examination, P.W. 18 admits that he did not tell this to any one till he was examined by police.

Though P.W. 19, Ramachandran, a jewelry shop owner in Kasukadai street, in his chief examination had stated that he had seen the accused

assaulting the deceased, in his cross examination admitted that he had stated about this only for the first time on 5.06.1999 to police.

Further, in his cross examination, P.W. 19 admits that on 28.05.1999, the next day of the occurrence, there was agitation by jewelers to trace

the killers of Gururajan and Gurusamy. This has also been admitted by P.W. 6 Mohan. The evidence of P.Ws. 6 and 19 shows that till

28.05.1999, none of the assailants were known to any one and till then it was a blind case.

Except A-1, prior to the occurrence, the identity of rest of the accused were not known to the eyewitnesses. In the FIR, none of the accused

were named. In the F.I.R., not even identifying features of the accused have been mentioned. In such circumstances, only after a few years of

occurrence, in the Trial court, for the first time, the eyewitnesses have identified A-1 to A-5 as persons who have assaulted Gururajan and

Gurusamy. Between their such substantive identification evidence in the trial court and the occurrence day, no test identification parade was

conducted, so as to corroborate their said substantive identification evidence in the trial court.

In this connection, it is relevant to note the following decisions concerning conducting of test identification parade, its object, the role of such

evidence, when conducting of it becomes necessary and when not necessary.

In Sheo Shankar Singh Vs. State of Jharkhand and Another, , the Hon''ble Supreme Court observed as under:

It is fairly well settled that identification of the accused in the court by the witness constitutes the substantive evidence in a case although any

such identification for the first time at the trial may more often than not appear to be evidence of a weak character. That being so a test

identification parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the

witness in the court who claims to identify the accused persons otherwise unknown to him. Test identification parades, therefore, remain in the

realm of investigation.

The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any

provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a

test identification parade does not, in that view, have the effect of weakening the evidence of identification in the court. As to what should be the

weight attached to such an identification is a matter which the court will determine in the peculiar facts and circumstances of each case. In

appropriate cases the court may accept the evidence of identification in the court even without insisting on corroboration.

The decisions of this Court on the subject are legion. It is, therefore, unnecessary to refer to all such decisions. We remain content with a

reference to the following observations made by this Court in Malkhansingh v. State of M.P. : (SCC pp. 751-52, para 7)

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the

Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused

persons, are relevant u/s 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The

evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The

purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule

of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to

them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is

impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to

the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a

right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed

by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of

identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept

the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa v. State of

A.P., Budhsen v. State of U.P. and Rameshwar Singh v. State of J&K.)

In Mulla and Another Vs. State of Uttar Pradesh, , the Hon''ble Apex Court observed as under:

Now, let us consider the arguments of the learned amicus curiae on the delay in conducting the test identification parade. The evidence of test

identification is admissible u/s 9 of the Evidence Act, 1872. The identification parade belongs to the stage of investigation by the police. The

question whether a witness has or has not identified the accused during the investigation is not one which is in itself relevant at the trial. The actual

evidence regarding identification is that which is given by witnesses in court. There is no provision in CrPC entitling the accused to demand that an

identification parade should be held at or before the inquiry of the trial. The fact that a particular witness has been able to identify the accused at an

identification parade is only a circumstance corroborative of the identification in court.

Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much

admissible in law. Where identification of an accused by a witness is made for the first time in court, it should not form the basis of conviction.

As was observed by this Court in Matru alias Girish Chandra Vs. The State of Uttar Pradesh, identification tests do not constitute substantive

evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation

into the offence is proceeding on the right lines. The identification can only be used as corroboration of the statement in court. (Vide Santokh Singh

v. Izhar Hussain.)

The necessity for holding an identification parade can arise only when the accused persons are not previously known to the witnesses. The

whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from

the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of

holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable

the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.

The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence

Act, 1872. It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes

necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea

of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however,

circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

In Daya Singh Vs. State of Haryana, ] the test identification parade was held after a period of almost eight years inasmuch as the accused

could not be arrested for a period of 71/2 years and after the arrest the test identification parade was held after a period of six months. It was

pointed out that the purpose of test identification parade is to have the corroboration of the evidence of the eyewitnesses in the form of earlier

identification. It was held that the substantive evidence is the evidence given by the witness in the court and if that evidence is found to be reliable

then the absence of corroboration by the test identification is not material. It was further held that the fact that the injured witnesses had lost their

son and daughter-in-law showed that there were reasons for an enduring impression of the identity on the mind and memory of the witnesses.

The identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test

identification parade is twofold. First is to enable the witnesses to satisfy themselves that the accused whom they suspect is really the one who was

seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person

whom the witnesses had seen in connection with the said occurrence. Therefore, the following principles regarding identification parade emerge:

(1) an identification parade ideally must be conducted as soon as possible to avoid any mistake on the part of witnesses;

(2) this condition can be revoked if proper explanation justifying the delay is provided; and

(3) the authorities must make sure that the delay does not result in exposure of the accused which may lead to mistakes on the part of the

witnesses.

In the facts and circumstances of the case before us, non conducting of test identification parade to corroborate the substantive identification

evidence of eyewitnesses for the first time before the trial court shakes the credibility of their such identification evidence in the Court. Further,

analysis of their evidence would show that they could not have witnessed the occurrence.

Now considering all the above aspects, the evidence of eyewitnesses do not inspire confidence in them and it is too hazardous to place reliance

on their such evidence and convict the accused.

Thus, we are of the considered view that the prosecution has not established its case beyond all reasonable doubts and the conviction and

sentences are required to be set aside. In the result, the Criminal Appeals are allowed. The conviction imposed upon the appellants and the

sentences awarded to them in S.C. No. 94 of 2001 on 17.11.2006 by the learned I Additional Sessions Judge, Thanjavur are set aside. The

appellants are acquitted from the charges. They are directed to be released forthwith, if their further custody is no longer required in connection

with any other case. The fine amount if already paid shall be refunded.