2010 Supreme(SC) 1170

2010 (8) Supreme 389
SUPREME COURT OF INDIA
V.S. Sirpurkar and Cyriac Joseph,JJ.
John Pandian — Appellant
versus
State Rep. by Inspector of Police, T. Nadu — Respondent
Criminal Appeal No. 452 of 2007
with
Abdul Kareem — Appellant
versus
State Rep. by Inspector of Police, T. Nadu — Respondent
Criminal Appeal No. 453 of 2007
with
Sivakumar — Appellant
versus
State Rep. by Inspector of Police, T. Nadu — Respondent
Criminal Appeal No. 455 of 2007
with
Yusuf — Appellant
versus
State Rep. by Inspector of Police, T. Nadu — Respondent
Criminal Appeal No. 2285 of 2010
[Arising out of SLP (Crl.) No. 1217 of 2007]
with
Ubaiadulla @ Tamil Selvan — Appellant
versus
State Rep. by Inspector of Police, T. Nadu — Respondent
Criminal Appeal No. 503 of 2007
with
Kumar & Ors. — Appellants
versus
State Rep. by Inspector of Police, T. Nadu — Respondent
Criminal Appeal No. 272 of 2008
Decided on : 3-12-2010

IMPORTANT POINTS
1. There is no absolute rule that where the statement is recorded late, the witness is a false witness or a trumped-up witness.
2. The evidence of Identification Parade need not be viewed as a weak type of evidence.
3. The examination of the accused cannot be dissected so as to rely on the inculpatory part and ignore the exculpatory part. . The examination of the accused has to be read as a whole.
4. Howsoever strong the suspicion may be, it cannot take place of the proof required to convict the accused.
5. All conspirators need not take active part in the commission of each and every conspiratorial act but, mere knowledge, even discussion,of the plan would not constitute conspiracy. Each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible.

Headnote:Indian Penal Code ,1860-Sections 120B, 302 read with Section 109-Prosecution of accused persons for causing death of deceased by assaulting him with aruval-Conviction by Trial Court-Appeals thereagainst-Dismissed by High Court-Appeals- Nothing to hold that prosecution witnesses, PW-14 ,.(PW-15) and (PW-16) had changed the spot- In fact, they would gain nothing by changing the spot-All of them were totally disinterested witnesses- They had nothing against the accused persons nor were they interested in the accused so as to speak falsehood in order to obtain the conviction- All the three witnesses had given graphic description of the incident. - All of them asserted that A-10 and A-11 stopped the deceased and A-9 started severely assaulting the deceased.- Trial and the appellate Courts were right in accepting evidence of said witnesses as truthful and evidence of Test Identification Parade, which had the effect of corroborating the evidence of three eye-witnesses- The strongest circumstance in support of existence of a conspiracy appeared to be the fact that three totally unknown persons to deceased went all the way from Palayamkottai/Tirunelveli and without any rhyme or reason, fatally assaulted (deceased)- All the evidence when considered, not connected (A-7) with crime- It could at the most raise suspicion-A7 held entitled to benefit of doubt- No evidence against A-5, which could brand him as a conspirator-A5 held entitled to acquittal - Difficult to swallow that a powerful person like (A-1) would take the help of some office boy in such a sensitive matter as this, where elimination of (deceased) was contemplated-This was the basic weakness in the prosecution case-In view of facts and circumstances of case conviction of A-9and (A-10) was upheld while (A-2), (A-4), (A-5) and (A-6) and (A-7) were held entitled to benefit of doubt (Paras 26,27,28,38,46 to 48)

        Indian Penal Code ,1860-Sections 120B, 302 read with Section 109-Prosecution of accused persons for causing death of deceased by assaulting him with aruval-Conviction by Trial Court-Appeals thereagainst-Dismissed by High Court-Appeals-All conspirators need not take active part in the commission of each and every conspiratorial act but, mere knowledge, even discussion,of the plan would not constitute conspiracy- Each one of the circumstances should be proved beyond reasonable doubt and such circumstances proved must form a chain of events from which the only irresistible conclusion is about the guilt of the accused which can be safely drawn and no other hypothesis of the guilt is possible -Courts below committed an error in first holding the existence of conspiracy and proceeding on that basis and then taking tit-bits in evidence to suggest that those tit-bits would connect the accused with the conspiracy as the conspirators- Not possible to hold that the acts done by (A-2), (A-4), (A-5) (A-6) and (A-7) along with deceased (A-1) and the subsequent act on part of (A-9), (A-10) and (A-11) formed a chain of circumstances which irresistibly proved the offence of conspiracy against these accused persons. (Para, 56 to 60)

        Criminal Trial-Discovery of weapon of assault-There is no rule that the same set of witnesses have to be used for both purposes, namely, for the confessional statement and the subsequent discovery in pursuance thereto- Undoubtedly, if the same set of witness is used, the discovery will become more acceptable and would gain credibility as the witnesses who have heard confessional statement would also have opportunity to see that what was confessed has resulted in the discovery in terms of the confession- But where it is found that the witnesses are even otherwise acceptable, there would be no question of rejecting the discovery only on this count.- Instantly common witness PW-56 was present both at the time of confessional statement and subsequent discovery of aruval- The Inspector had given a good explanation as to why he did not take the earlier pair of witnesses-Hence held that discovery appeared to be credible (Paras 32, 33)

        Criminal Trial-Conspiracy-In order to prove criminal conspiracy, there must be evidence direct or circumstances to show that there was an agreement between two or more persons to commit an offence- There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of the offence and where the factum of conspiracy is sought to be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence- Prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt- The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means- A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy- It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched- The circumstances relied for the purposes of drawing an inference should be prior in point of time than the actual commission of the offence in furtherance of the alleged conspiracy (Para 56)

       Facts of the Case :

        Accused persons were prosecuted herein in the instant case for causing death of deceased by assaulting him with aruval. Appeals thereagainst were filed on Conviction by Trial Court. Said appeals were Dismissed by High Court.

        2. Present appeals have been filed against said order of High Court.

       Findings of the Court :

        Nothing to hold that prosecution witnesses, PW-14 ,.(PW-15) and (PW-16) had changed the spot. In fact, they would gain nothing by changing the spot-All of them were totally disinterested witnesses. They had nothing against the accused persons nor were they interested in the accused so as to speak falsehood in order to obtain the conviction. All the three witnesses had given graphic description of the incident. All of them asserted that A-10 and A-11 stopped the deceased and A-9 started severely assaulting the deceased. Trial and the appellate Courts were right in accepting evidence of said witnesses as truthful and evidence of Test Identification Parade, which had the effect of corroborating the evidence of three eye-witnesses. The strongest circumstance in support of existence of a conspiracy appeared to be the fact that three totally unknown persons to deceased went all the way from Palayamkottai/Tirunelveli and without any rhyme or reason, fatally assaulted (deceased).

        All the evidence when considered, not connected (A-7) with crime,. It could at the most raise suspicion-A7 held entitled to benefit of doubt. No evidence against A-5, which could brand him as a conspirator-A5 held entitled to acquittal. Difficult to swallow that a powerful person like (A-1) would take the help of some office boy in such a sensitive matter as this, where elimination of (deceased) was contemplated.This was the basic weakness in the prosecution case.In view of facts and circumstances of case Conviction of A-9and (A-10) was upheld while (A-2), (A-4), (A-5) and (A-6) and (A-7) were held entitled to benefit of doubt.

       Result : Ordered Accordingly