IMPORTANT POINTS
(1) Court cannot convict accused on the basis of principles of preponderance of probability – It is duty of Court to make sure that miscarriage of justice is avoided at all costs and benefit of doubt, if any, given to accused.
(2) Test Identification Parade – Entire necessity for holding investigation parade can arise only when accused are not previously known to witnesses – Identification parade does not hold much value when identity of accused is already known to witness.

JUDGMENT :

SANJAY KAROL, J.

1. The Appellant Udayakumar (A-2) stands convicted by both the courts below for murdering one Purushothaman, thus having committed an offence punishable under Section 302 of the Indian Penal Code, 1860. Consequently he is sentenced to suffer imprisonment for life. However, in relation to an offence under Section 120-B of the Indian Penal Code, 1860 he stands acquitted vide impugned judgment delivered by High Court dated 15.03.2010 in Criminal Appeal Nos. 17, 22 and 24 of 2010 titled as Udayakumar and Others vs. State of Tamil Nadu.

2. Significantly, in terms of the very same impugned judgment, the other two co-accused persons namely Panneer Dass (A-1) and Periyasamy (A-3) stand acquitted in the relation to both the offences i.e. Section 302 and Section 120-B of the Penal Code.

3. As a result, the present appeal filed by convict, Udayakumar (A-2).

4. Prosecution through the testimonies of 23 witnesses has tried to establish complicity of all the three accused on the prognosis that Panneer Das (A-1) was having business relationship with the deceased (Purushothaman). Since certain disputes and business rivalry emerged between the two, the former harboured a grudge against the latter. Resultantly, he along with A-3 hatched a conspiracy to murder the deceased and for achieving such a design services of A-2 were engaged. On 22.10.2008, at about 8:30PM, A-2 killed the victim with a sickle by giving blows on the side of the neck. Immediately thereafter, A-1 and A-3 came in a vehicle, in which A-2 fled away from the spot of the crime which was an open public road. The incident was witnessed by Venkatesan (PW-1) who was known to the deceased. With the matter being reported to the police, FIR No. 2261/2008 dated 22.10.2008 was registered at Police Station, Theynampet. The investigation was conducted by Police Officer Kuppusamy (PW-23) and after recovering the body of the deceased, the post-mortem was conducted by Dr. K. Mathiharan (PW-21). Initial investigation revealed complicity of A-1 and A-3. As such, the latter was arrested on 16.12.2009, who disclosed the cause and the manner of commission of crime.

5. With the completion of investigation, challan was presented before the Court for Trial. Vide judgment dated 04.12.2009 in S.C. No. 113 of 2009 titled as State vs. Panneerdass and Others the Ld. Trial Court, convicted all the accused in relation to the offences charged for and sentenced them to a term of life imprisonment.

6. Significantly, the High Court, by disbelieving the testimonies of the prosecution witnesses, repelling the case of conspiracy, acquitted A-1 and A-3 on all counts and only on the basis of identification of A-2 by PW-1, upheld the conviction and sentence with respect to the offence punishable under Section 302 of the Indian Penal Code. It is a matter of record that no appeal against the judgment of acquittal of A-1 and A-3 stands preferred by the prosecution/State. Hence, this Court has been called upon only to examine the guilt or innocence of A-2.

7. We may reiterate that other than the identification of A-2 being the assailant as witnessed by PW-1, there is no material on record, be it of whatsoever nature, linking the Appellant to the crime. There is no material to indicate that A-1 or A-3 hired the services of A-2 for murdering deceased Purushotaman. Further, there is no material indicating the accused to have murdered the victim with a sickle, the alleged weapon of offence. No tell-tale signs or evidence, be it of any nature, scientific or otherwise, is on record, even remotely linking the convict to the crime.

8. Examining the testimony of PW-1, we notice him to have firstly reported the matter to the police and in the FIR there is no description of the assailant, much less identity of A-2 to have been disclosed. Yet, the High Court, even while discarding the disclosure statement of A-3, convicted A-2, which in our considered view has resulted into travesty of justice.

9. This Court in the