{"id":136147,"date":"2006-07-10T00:00:00","date_gmt":"2006-07-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/abuthagir-vs-the-state-rep-by-on-10-july-2006"},"modified":"2018-11-21T22:18:45","modified_gmt":"2018-11-21T16:48:45","slug":"abuthagir-vs-the-state-rep-by-on-10-july-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/abuthagir-vs-the-state-rep-by-on-10-july-2006","title":{"rendered":"Abuthagir vs The State Rep. By on 10 July, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Abuthagir vs The State Rep. By on 10 July, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\nDATED: 10.07.2006\nCORAM:\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\nAND\nTHE HONOURABLE MR.JUSTICE M.E.N.PATRUDU\nCriminal Appeal No.953 of 2003\n\n1.Abuthagir\n2.Ashik\n3.Jafri @ Syed Zheer Ahamed,\n4.Aslam\t\t\t\t\t\t\t... Appellants \t\t\t\n\t\t\t\t\t\tVs.\t\nThe State rep. by\nInspector of Police,\nC.B.C.I.D., Madurai,\nKarimedu Police Station,\nCrime No.1861 of 1997,\nMadurai District.\t\t\t\t\t... Respondent\n\n\nPRAYER: Criminal Appeal filed under Section 374 of the Criminal Procedure Code, against the judgment and decree dated 02.05.2\n!For Appellants 1 & 2 : Mr.M.Thirumalai Raj\n\t\t\n^For Appellants 3 & 4 : Mr.S.Shanmuga Velayutham \t\n\t    For Respondent       : Mr.Pandi Durai\n\t\t\t\t\t\t Additional Public prosecutor\n \t\t\t\n: JUDGMENT\n<\/pre>\n
M.E.N.PATRUDU,J<\/p>\n
1.00:  Next to war, crime is the most concern of the people.\n<\/p>\n
1.01:  The recent trends of violence under the guise of Terrorism, Naxalism, factionalism, communalism, castism, goondaism is<\/p>\n
1.03:  Before we embark upon deciding the core question, viz., the hard core act of appellants, we may note some of the relev<\/p>\n
(A)Devender pal Singh  Vs.  State N.C.T of Delhi(1)
\nThe Honourable Justice.Arijit Pasayat is pleased to observe;\n<\/p>\n
———————————————————-
\n(1) AIR 2002 SC 1661<\/p>\n
“Menace of terrorism is not restricted to one country, and it has become a matter of international concern… Whether the cri<\/p>\n
(B)Hithendra Vishnu Thakur  Vs. State of Maharastra (1)
\n    It is held as follows;\n<\/p>\n
 “It is a common feature that hardened criminals today take advantage of situation and by wearing the cloak of terrorism, aim<\/p>\n
———————————————————–(1) AIR 1994 SC 2623<\/p>\n
(C)Mohd.Khalid   Vs.  State of West Bengal,(1)
\n     At paragraph 46,  it is observed as follows;\n<\/p>\n
\t “Violence and crime constitute a threat to an established order and are a revolt  against  a  civilised  society.
\n      “It may be possible to describe it as use of violence when its most important result is not merely the physical and men<\/p>\n
———————————————————–(1)2002 SCC (Criminal) 1734<\/p>\n
society and not only those directly assaulted, with a view to disturb the even tempo, peace and tranquility of the society an<\/p>\n
(D)Harijana Thirupala and others  Vs. Public Prosecutor, Andhra Pradesh,(1)
\nThe observation of the Honourable Supreme Court is as follows;\n<\/p>\n
 “In our administration of criminal justice an accused is presumed to be innocent unless such  presumption is rebutted by the\n<\/p>\n
———————————————————–(1) AIR 2002 SC 2821.\n<\/p>\n
on fanciful grounds or on the basis of conjectures and surmises.  The case of the prosecution must be judged as a whole havin<\/p>\n
1.04: With this back drop we shall proceed further.\n<\/p>\n
2.00:  CASE FACTS
\n2.01: In a daylight violent act, an Assistant Jailer of the central prison Madurai in the State of Tamilnadu was murdered: It<\/p>\n
2.02: The murder is not in dispute.  The identity of the murderers is the only dispute.\n<\/p>\n
2.03: Thus the focus of the Court is on that sole point.\n<\/p>\n
2.04: For the purpose of understanding the case, it would be sufficient to refer to some of the material facts  effectively a<\/p>\n
2.05:  We do not wish to reproduce the whole content of charge sheet, or the narrations of the trial Judge. We are concentrat<\/p>\n
2.06: This case rest on direct and circumstantial evidence<\/p>\n
2.07:  MOTIVE\n<\/p>\n
\t(i) Shahul Hammed an under trial prisoner was arrested under the offence of TADA Act and he  was originally lodged in Centra<\/p>\n
\t(ii)  The deceased Jayaprakash was working as Assistant Jailor and he is in-charge of admission of prisoners in the Central<\/p>\n
\t(iii)  On 30.05.1997, the said Shahul Hameed was brought to Central Prison, Madurai.   At the time of admitting the prisoner<\/p>\n
\t(iv) The prisoner made complaints to all the higher Officials.  On knowing this fact, the followers of Shahul Hameed agitate<\/p>\n
\t(v) The case of the prosecution is that Shahul Hameed is one of the leader of Al-uma a terrorist outfit indulging in activit<\/p>\n
2.08:  CONSPIRACY\n<\/p>\n
\t(i) It is further alleged that all the five accused and others conspired with a common object and common intention to elimin<\/p>\n
2.07: INCIDENT\n<\/p>\n
     (i) The date of offence is 29,08.1997.\n<\/p>\n
    \t(ii)The time of incident is 3.00 p.m.\n<\/p>\n
    (iii) The place of incident is near the Central Prison, Madurai.\n<\/p>\n
    (iv) It is said that the deceased was returning back to his duty after having lunch in his house and when he reached the\n<\/p>\n
\t(v) According to the first report and the preliminary investigation of  police, three or four unidentified persons came on m\n<\/p>\n
\t(vi)Whileso the big break through of the case is the Crime No.741\/1998 of Kodambakkam Police Station;  The first appellant w\n<\/p>\n
\t(vii) The appellants are defended by advocates of their choice;  Necessary charges are framed and the trial proceeded.\n<\/p>\n
2.08: EVIDENCE
\n    Prosecution relied on the following;\n<\/p>\n
\t(i)Witnesses\n<\/p>\n
     (a) The evidence of Pws.1, 2, 3 and 4 about the incident;\n<\/p>\n
\t  (b) The circumstantial evidence of Pws 5,7,8 and 12 on the motive;\n<\/p>\n
\t  (c) The expert evidence of PW11 and the evidence of PW9 and PW22 on the conspiracy;\n<\/p>\n
\t (d) The evidence of PWs.9, 10, 14, 15 and 22 on recoveries.\n<\/p>\n
     (ii)Documents and material objects\n<\/p>\n
\t(a) Ex.P1 is the report to police; Ex P2 to P4 are the letters received by Shahul Hameed from his followers; The expert repo\n<\/p>\n
\t(b)The important material objects are, MO5 the Motorcycles, and the Lodge registers.\n<\/p>\n
\t(iii) The defence of appellants is  total denial;  They are examined under Section 313 Cr.P.C; No defence witness was examin<\/p>\n
2.09:  The learned trial Judge, convicted all the appellants for the offences under Sections 120(B), 148, 341 IPC and 302 r\/w<\/p>\n
2.10: ARUGUMENTS
\n\t In this appeal, appellants are challenging the legality and correctness of the impugned judgment.\n<\/p>\n
2.11: We had the occasion of hearing elaborate arguments on behalf of appellants.\n<\/p>\n
2.12: Sri.M.Thirumalai Raj representing A1 and A2 addressed the bench at first following the general practice and procedure;\n<\/p>\n
2.13:   The learned counsel appearing for appellants made a  frontal attack on the direct evidence of the two eye-witnesses i<\/p>\n
3.00: Points<\/p>\n
3.01:  We shall deal point by point by discussing the evidence both oral and documentary, the arguments, the law and case law<\/p>\n
3.02: The points for determination are\n<\/p>\n
 1) Whether PW3 & PW4 are truthful witnesses;\n<\/p>\n
 2) Whether the identification of accused by PW3 &  PW4 is established;\n<\/p>\n
 3) Whether the incriminating facts are discovered at the instances of appellants;\n<\/p>\n
 4) Whether the motive is established;\n<\/p>\n
 5) Whether the conspiracy is proved;\n<\/p>\n
 6) Whether the appellants are guilty for any offence.\n<\/p>\n
4.00: Point-1<\/p>\n
4.01: Eyewitnesses:\n<\/p>\n
\t(i) The main grievance ventilated by the counsel for the appellant is that PW3 & PW4 are introduced into case as if they hav<\/p>\n
\t(ii) In as much as Sri.Thirumalai Raj, the learned counsel pointed out by drawing our attention to the following circumstanc\n<\/p>\n
\ta) There is a long delay in examination of PW3 & PW4 by investigation agency;\n<\/p>\n
\tb) There is no explanation from the investigator about the delay;\n<\/p>\n
\tc) PW3 & PW4 did not reveal the incident to anybody till their statements are recorded by police;\n<\/p>\n
\td) It is not known now the investigator has traced them after such long delay;\n<\/p>\n
\te) PW3 & PW4 maintained silence for eight long months;\n<\/p>\n
\tf) The conduct of PW3 & PW4 is most unnatural;\n<\/p>\n
\tg) Where is the need for PW3 & PW4 to disclose about the incident after eight months.\n<\/p>\n
4.02: By placing heavy reliance on the above contention, the learned counsel has placed the following decisions;\n<\/p>\n
\t1) 1971 Cr.L.J  670   Supreme Court\n<\/p>\n
\t2) 1972 Cr.L.J  824   Rajasthan High Court\n<\/p>\n
\t3) 1973 Cr.L.J  1301  Madras High Court\n<\/p>\n
\t4) 1996 Cr.L.J  489   Allahabad High Court\n<\/p>\n
\t5) 2001 S.C.C(Crl)439\n<\/p>\n
     6) 2004 S.C.C(Crl)1888\n<\/p>\n
\t7) 2005(1) TLT Crimes 278  Madras High Court<\/p>\n
4.03:  The arguments made at the bar have no merits.  The decisions cited above needs no attention in view of the latest deci<\/p>\n
4.04:  The case of the prosecution must be judged as a whole having regard to the totality of the evidence.  In Harijiana Thi<\/p>\n
———————————————————–(1) AIR 2002 SC 2821<\/p>\n
Court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic va<\/p>\n
4.05: Delay in examination of PW3 & PW4
\n\t Latest judgments of the apex Court are;\n<\/p>\n
(A)Sohan Singh  Vs. State of Uttaranchal(1)
\n  At para 11 of the judgment, it is observed as follows;\n<\/p>\n
\t“It is well settled that delay in examination of prosecution witnesses by the police during the course of investigation, ips<\/p>\n
(B)Sunil Kumar  Vs.  State of Rajasthan(2)
\nAt para 14 of the judgment, the Apex Court observed\n<\/p>\n
———————————————————–
\n(1)2006 (1) TLJ 158 (SC)
\n(2)2005 SCC (Crl) 1236
\n\t“So far as the delayed recording of statement of the witnesses is concerned, here again no question was put to the investiga<\/p>\n
(C)State of U.P  Vs.  Satish(1)
\nAt paragraph 19 of the judgment, it is observed as follows;\n<\/p>\n
\t“As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating\n<\/p>\n
———————————————————–(1)AIR 2004 SC 261<\/p>\n
factors.  If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same a<\/p>\n
At para 21 of the judgment, it is observed as follows;\n<\/p>\n
  “It is to be noted that the explanation when offered by I.O. On being questioned on the aspect of delayed examination, by t<\/p>\n
(D)Ramanand Yadav  Vs.  Prabhu Nath Jha(1)
\nAt para 14 of the judgment, it is observed as follows;\n<\/p>\n
\t“The second factor which has weighed with the High Court is the delayed examination of three witnesses i.e. P.Ws.6, 7 and 9.\n<\/p>\n
———————————————————–(1)2004 Crl.L.J 640<\/p>\n
4.06: The forceful contention of the counsel for the appellant is that there is unexplained delay in examination of PW3 & PW4<\/p>\n
4.07:  We are rejecting this argument for more than one reason.  There is no delay at all in examining PW3 and PW4; They are<\/p>\n
4.08:  In this case, the incident occurred on 29.08.1997.  The accused were arrested in may 1998 after eight months.  It an a<\/p>\n
4.09:  In the instant case, the investigating agency was making all attempts to know the  names of witnesses.  This fact cann<\/p>\n
to strengthen their case by planting some witnesses to implicate the accused, they would have soon after  the incident or at-\n<\/p>\n
4.10: Bachittar Singh and another  Vs.  State of Punjab.(1)     Honourable Mr.Justice.S.K.Sima, of the Supreme Court of India
\n\t“MAN PROPOSES, GOD DISPOSES”, is exactly what has happened here.  What the accused thought was that they were committing a h\n<\/p>\n
———————————————————–(1)  2003 SCC (Criminal) 233<\/p>\n
\tIn the above case also, when the police was investigating the case to know the truth, PW3 a resident of the village came and<\/p>\n
\t  Their Lordships are unable to accept the same; It is held that the testimony of PW3 is quite natural and trustworthy and w
\n  At Paragraph 11, 12 & 21 it is observed as follows;\n<\/p>\n
“There are no hard-and-fast rule to test the veracity of the witnesses.  One way of testing the veracity of the witness is th<\/p>\n
statement.  Simplicity of the statement is indicative of the naturalness and truthfulness.  Often the polished statement tend
\n\t“Human behaviour varies from man to man.  Different people behave and react differently in different situations.  Human beha
\n\t “Believing the eyewitness account of Joginder Singh, coupled with other formidable materials on record, as discussed above,<\/p>\n
view that the guilt of the accused has been established beyond the shadow of doubt, as held by the trial court and confirmed<\/p>\n
4.11: Banti alias Guddu  Vs.  State of Madhya Pradesh.(1)
\n\tAt paragraph 17 of the judgment it is observed as follows;\n<\/p>\n
\t“As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating<\/p>\n
———————————————————–(1)AIR 2004 SC 261<\/p>\n
factors.  If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same a<\/p>\n
4.12: Bodh Raj alias Bodha and others  Vs.  State of Jammu & Kashmir(1)
\n\tIt was held that whenever the delay is explained it is not fatal.\n<\/p>\n
4.13: Mohd.Kalid  Vs.  State of West Bengal(2)
\n It is observed as follows;\n<\/p>\n
  “Mere delay in examination of the witnesses cannot in all cases be termed to be fatal so far as the prosecution is concerne<\/p>\n
———————————————————-
\n(1)AIR 2002 SC 3164
\n(2)2002 SCC (Criminal) 1734<\/p>\n
4.14: Explanation of delay
\n \tPW22 is the Investigator; There is no cross- examination to PW22 on the delay; Except suggesting that PW3 & PW4 are introdu<\/p>\n
4.14:  Further PW3 & PW4 have explained the delay by stating that on seeing the photographs of accused they went to Police St<\/p>\n
4.15:\tThe other forceful argument of the counsel for the appellant is that the conduct of PW3 & PW4 by not revealing the inci<\/p>\n
4.16: In this context, we would like to refer to a landmark Judgment of the Honourable Supreme Court of India.\n<\/p>\n
Vemireddy Satyanarayan Reddy and others  Vs.  State of Hyderabad(1) 1956 SC 379.\n<\/p>\n
\tHonourable Sri.Justice.Chandrasekhara Aiyar has observed  as follows;\n<\/p>\n
\t“(6) Being the only witness for the commission of the crime, the ‘dhobi’ boy (PW14) was subjected to severe criticism. .. De<\/p>\n
———————————————————– (1) AIR 1956 SC 379<\/p>\n
\t“It is true he did not divulge the secret of the murder to any one else except to his own father. “But who would, in view of
\n\t“Indeed, there can be no doubt that the evidence of a man like P.W.14 should be scanned with much caution and we must be ful
\nwould be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth.
\n\tSuch corroboration need not, however, be on the question of the actual commission of the offence; if this was the requiremen<\/p>\n
4.17:\tIn the instant case, PW3 is a mason, PW4 is a street hawker.  As observed BY Honourable Supreme Court that it requires<\/p>\n
4.18 :  CONDUCT
\n\tThe observation of Honourable Supreme Court of India on this point are;
\n\t(A)In Hafiz v. State of U.P.<\/a>(1), the Hon’ble Supreme Court of India held that different persons act differently in a given s<\/p>\n
     (B)In Appabhai and another v. State of Gujarat(2)
\n        It has been held that-\n<\/p>\n
   “People are generally insensitive when a crime is committed even in the presence.  They withdraw both from the victim and\n<\/p>\n
———————————————————–
\n(1) 2006(1)Supreme Court Cases (Cri) 647
\n(2) AIR 1988 Supreme Court 696
\nThey keep themselves away from the Court unless it is inevitable.  They think that crime like civil dispute is between two in<\/p>\n
  \t (C) In State of U.P. vs. Anil Singh<\/a>(1)\n<\/p>\n
———————————————————–(1) AIR 1988 Supreme Court 1998
\n      It has been held that-\n<\/p>\n
\t“The indifferent attitude of the public in the investigation of crimes could also be pointed.  The public are generally relu<\/p>\n
\t(D) In Rajaram and others v. State of M.P.<\/a>(1)
\n        It has been held that-\n<\/p>\n
\t“4………A witness is normally considered to be an independent witness unless he springs from the sources which are likely<\/p>\n
\t(E)In Aher Maya Visa and others v. State of Gujarat<\/a>(2)                          \tIt has been held that-
\n\t“Any case of cooking up a story by introducing alleged eye-witnesses does not stand scrutiny.  It may be noted that hardly t<\/p>\n
———————————————————–(1) (AIR 1994 SUPREME COURT 846)
\n(2).(AIR 1992 Supreme Court 2155)<\/p>\n
Bhikha to falsely implicate four innocent persons with a charge of murder.  Admittedly the murder had taken place near the bu<\/p>\n
4.19:  There is no enmity between PW3 & PW4 and the accused. There is no friendship or family relationship between PW3 & PW4<\/p>\n
4.20:\tIn the instant case, PW3 & PW4 are  independent and natural witnesses.  They have no ill will towards accused or affect<\/p>\n
4.21:  From fact that on seeing the photographs of the assailants in the newspaper they went before the investigating agency<\/p>\n
4.22: Sardul Singh   Vs. State of Haryana(1)
\nAt Paragraph 8 of the judgment, it is observed as follows;\n<\/p>\n
\t“There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the courts to analy\n<\/p>\n
———————————————————–(1)AIR 2002 SCC 3462<\/p>\n
State of U.P.  Vs. Ram Sewak and others(1)
\nAt paragraph 26 of the judgment, it is observed as follows;\n<\/p>\n
“…Criminal jurisprudence no doubt requires a high standard of proof for imposing punishment on an accused, but it is equall<\/p>\n
 State of Madhya Pradesh  Vs. Ramesh(2)
\nAt paragraph 6 of the judgment, it is observed as follows;\n<\/p>\n
\t“This delay in examining the two witnesses ipso fact cannot be a ground to discard their testimony, more so, when in the cro\n<\/p>\n
———————————————————–
\n(1) 2003 SCC 459
\n(2) AIR 1999 SCC 3761
\n On the other hand, evidence of PWs 2 and 4 fully corroborates the reliable evidence of P.W.1 and therefore, the Courts below<\/p>\n
4.23: In the instant case, the deceased is an Assistant Jailer.  He is neither relative  nor friend or known persons to PW3 &<\/p>\n
4.24:  Why PW3 and PW4 are present is immaterial; whether their evidence is worth evidence is material.\n<\/p>\n
4.25: Evidence of PW3<\/p>\n
\tHe deposed that he is a resident of Santhi Nagar and a mason by profession.  He further deposed that he was coming  New Jail<\/p>\n
4.26:  PW3 further deposed that he went to Sugarcane Juice Cart, then the deceased was coming with Jail uniform on bicycle. A<\/p>\n
4.27: Evidence of PW4
\n\t  She deposed that she is residing at Railway colony and doing business in sarees by selling in the houses hold in the city.\n<\/p>\n
4.28:   The evidence of PW3 & PW4 is corroborating with each other.\n<\/p>\n
\t (i)They deposed that they are residents of Santhinagar and Railway colony of Madurai, it was not challenged.  They deposed\n<\/p>\n
\t (ii) PW4 in her cross-examination clearly stated that on the date of occurrence, she went to the place of occurrence only f<\/p>\n
4.29: State of Uttar Pradesh  Vs.  Man singh and others(1)
\n    It was held that when the witnesses never asked in the cross-examination as to whether there was fog at the time<\/p>\n
———————————————————–(1)  AIR 2003 SC 62<\/p>\n
 of the incident, and if so, did it obstruct the eye-witness from the watching the occurrence and when this aspect was never<\/p>\n
4.30: \tIn a murder case, based on direct witness account, it is necessary to examine the testimony of eye-witnesses in order<\/p>\n
4.31:  PW3 & PW4 narrated how the incident occurred.\n<\/p>\n
4.32: PW12 held the autopsy on the dead body of the deceased and he found twenty injuries on the dead body of the deceased an<\/p>\n
4.33:\tPW1 Mohamed Sulaiman is the first informant.  He is not an eye-witness but he speaks about the incident on the basis of
\n\t  He was cross-examined with regard to the identity of the person who gave information, PW1 clearly replied that the person<\/p>\n
4.34:   In the cross-examination of PW1 it was also elicited that when he rushed to the spot, there was no public near the de<\/p>\n
4.35:  Thus the facts elicited in the cross-examination of PW1 are fully corroborated with the evidence of prosecution on rec<\/p>\n
4.36: \tThus the evidence of PW1 is fully corroborated with the testimony of PW3 & PW4.\n<\/p>\n
4.37: PW2
\n\t She is a most natural witness.  The Sugarcane cart belongs to her family.  She deposed that on the date of incident at abou<\/p>\n
4.38:  All the witnesses ie., PW1 to PW4 have clearly stated that at that time of the incident the deceased who was coming on<\/p>\n
4.39: Rex  Vs. Baskerville'(1)\n<\/p>\n
———————————————————–(1) 1916-2 KB 658(A)<\/p>\n
\t“The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circum<\/p>\n
4.40:\tIn the instant case, there is no dispute about the time of incident, the place of incident, the date of incident and al<\/p>\n
4.41:  The main grievance is on the evidence of PW3 & PW4, because they identified the accused.    When the evidence of PW3 &<\/p>\n
4.42:  Thus we hold that the evidence of PW1, PW2, PW3 and PW4 is truthful and credit worthy.\n<\/p>\n
5.00:  Point-2- IDENTIFICATION<\/p>\n
5.01:  The counsel for the appellants attacking heavily on the identification of the appellants by PW3 and PW4 and urged that<\/p>\n
5.02:  In the instant case, the appellants are not known to PW3 & PW4 prior to the incident.  The incident occurred on 29.08.\n<\/p>\n
5.03:  The case of the prosecution is that the murder took place during day time. The evidences of PW3 & PW4 discloses that t<\/p>\n
5.04:   Since the incident occurred during day time and the incident was witnessed by PW3 & PW4 from very close proximity, th<\/p>\n
5.05:  No rule of law requires that the oral testimony of the witnesses should be corroborated by the evidence of identificat<\/p>\n
Delhi Administration Vs. Balakrishan(1)
\n\tIt was held that it cannot be held that after the lapse of long period witnesses will not be able to identify the dacoities,\n<\/p>\n
———————————————————–
\n(1) AIR 1972 SC 3
\n\tIn that case, a dacoity took place during night time and there was no sufficient light and after the arrest of the accused,<\/p>\n
Chander Singh  Vs.  State of U.P(1)
\nThe Honourable Supreme Court of India has held though witnesses had clearly stated that they have seen the miscreants and abl
\nable to say, the number of accused participated in the crime and when there was no crowd at the time of offence, at the place\n<\/p>\n
———————————————————–
\n(1)in AIR 1973 SC 1200
\nHariprasad  case(1)
\nIt is clearly held that the incident occurred in a broad day light when the witnesses were able to see the occurrence from a<\/p>\n
Mohd.Aslam  Vs.  State of Maharashtra(2)
\nIt was observed that when the incident happened in the city of Mumbai at about 8.15 p.m., it was not a time  the city go into<\/p>\n
5.06:  The credibility of the evidence relating to the identification of the assailants appears largely on the opportunity of\n<\/p>\n
———————————————————–
\n(1)AIR 1991 SC 82
\n(2) 2001(9) SCC 362,
\nWhen the witness was able to notice the assailants from a close vicinity and he is also able to tell that how the assailants<\/p>\n
5.07:  In the instant case, the incident occurred at 3.00p.m., in the heart of the city and the incident created a terror amo
\nTEST IDENTIFICATION PARADE
\n5.08: In Jayawant Dattatray Suryarao  Vs.  State of Maharastra(1)
\n\tIt is held as follows;\n<\/p>\n
\t“We would also reiterate that substantive evidence of a witness is his evidence in Court.  Identification parade is not prim\n<\/p>\n
———————————————————-((1) AIR 2002 SC 143,
\nhas seen the accused for few minutes it would be difficult for him to identify.  It always depends upon one’s capacity to rec<\/p>\n
5.09: The counsel for the appellants vehemently contended that without conducting test identification parade the PW3 & PW4 pu<\/p>\n
5.10:  During the investigation of a crime, the police has to held a identification parade for the purpose of enabling the wi<\/p>\n
5.11:  Thus the identification parade belongs to the investigation stage.  The identification parade is not for the Court. If<\/p>\n
5.12:  Muskhan   Vs.  State of M.P,(1)
\nThe Honourable Supreme Court of India was pleased to observe as follows;
\n “7. It is trite to say that the substantive evidence is the evidence of identification in Court.  Apart from the clear provi\n<\/p>\n
———————————————————–  (1) 2003 SC (Criminal) 1247
\nsettled by a catena of decisions of this Court.  The facts which established the identity of the accused persons, are relevan
\n\t“9. In Harbajan Sing   Vs.  State of Jammu and Kashmir, though a test identification parade was not held, this Court upheld\n<\/p>\n
\t12.In Suresh Chardra Bahri  Vs.  State of Bihar, this Court held that it is well settled that substantive evidence of the wi
\n \t“In State of U.P.  Vs. Botta Singh, this Court observed that the evidence of identification becomes stronger if the witness
\n\t“It is well settled that the substantive evidence is the evidence of identification in court and the test identification par<\/p>\n
5.13:  In the instant case, the important fact cannot be ignored; PW3 and PW4 went to Police Station and gave statement after<\/p>\n
Point No.3
\n6.00: Discovery:\n<\/p>\n
6.01:  Section 27 of the Indian Evidence Act is as follows;\n<\/p>\n
\t“27.How much of information received from accused may be proved-
\n\tProvided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any<\/p>\n
6.02:\tIn the instant case, the case of the prosecution is relied on the following discoveries.  At the instance of accused No<\/p>\n
\t1. Bakkim lodge record\n<\/p>\n
\t2.Handwritings of first and third appellants in the registers\n<\/p>\n
\t3. Impersonation as Kumar and David<\/p>\n
6.03: The evidence of PW19, the Village Administrative Officer and the evidence of PW10, the clerk-cum-Cashier of Bakkim Lodg<\/p>\n
6.04:\t The other important fact which was discovered in this case is that the first appellant disclosed that himself and the<\/p>\n
6.05:  In order to verify this fact, the PW22 has collected the standard signatures of the first appellant and third appellan<\/p>\n
6.06: Recovery of Material Objects:\n<\/p>\n
\tIn this case, the prosecution could not recover the weapons used in the commission of offence.  Though the  confession made<\/p>\n
6.07:\tBut one fact cannot be ignored by the Court at this stage. If at all the prosecution wanted to fabricate the evidence a<\/p>\n
6.08:\tIn this case, the investigation agency was able to recovery the Motorcycles which was used in the commission of offence<\/p>\n
6.09:  We do not accept this contention. The  motorcycle has been handed over to the Cycle stand.  The owner of the cycle sta<\/p>\n
6.10:\tIn this case, the investigator was able to locate the STD Telephone booth from where the accused spoken with others.  T<\/p>\n
6.11:\tThe discovery of all those facts are  strengthening the case. The evidence disclose that  incriminating facts are disco<\/p>\n
Point No.4
\n7.00: Motive:\n<\/p>\n
7.01:  The evidence of PW5, the Superintendent of Central Prison, PW7 and PW9, revealed the motive part.  They have clearly t<\/p>\n
7.02: The case of the prosecution is that the first appellant is the brother of the Shahul Hameed.  The first appellant did n<\/p>\n
Point 5:\n<\/p>\n
8.00: Conspiracy:\n<\/p>\n
8.01:  On behalf of the appellants, it is contend that the charge of conspiracy is at Coimbatore, whereas there is no evidenc<\/p>\n
8.02: In the instant case, the first appellant who was interrogated by PW22 revealed the fact that they stayed in a lodge cal<\/p>\n
8.03: Case law and conspiracy:\n<\/p>\n
\t(A) Mohd.Khalid v. State of W.B(1)
\n\t“17….The elements of a criminal conspiracy have been stated to be: (a) an object to be accomplished, (b) a plan or scheme<\/p>\n
———————————————————–(1)2002 Supreme Court Cases (Cri) 1734<\/p>\n
agreement, or by any effectual means, and (d) in the jurisdiction where the statute required an overt act.  The essence of a<\/p>\n
\t18. No doubt in the case of conspiracy there cannot be any direct evidence.  The ingredients of the offence are that here sh\n<\/p>\n
19…\n<\/p>\n
20…\n<\/p>\n
21. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to publ<\/p>\n
    (B)In Devender Pal Singh v. State N.C.T. of Delhi<\/a>(1)
\n     It has been held that-\n<\/p>\n
\t“22. In Kehar Sing and others v. State (Delhi Administration) (AIR 1988 SC 1833 at p.1954), this Court observed-
\n\t“Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce\n<\/p>\n
———————————————————–  (1)AIR 2002 Supreme Court 1659<\/p>\n
direct evidence of the same.  The prosecution will often rely on evidence of acts of various parties to infer that they were\n<\/p>\n
\t23. Where trustworthy evidence establishing all links of circumstantial evidence is available, the confession of a co-accuse
\nPoint-6 :  DECISION
\n9.00:  On careful Scrutiny of the entire evidence on record and considering the submissions made at the bar in support of the<\/p>\n
\t (1) Appellants A1 to A4 are guilty for an offence of murder and have committed the same with common intention.  Therefore,
\n\t (2) We also hold that the appellants have committed rioting punishable under Section 148 I.P.C.  Therefore, they were convi
\n\t (3) We also hold that the prosecution is able to establish the conspiracy for committing the crime.  Therefore, the convict
\n\t(4) However, we are of the opinion that there is no evidence for an offence under Section 341 I.P.C, hence the appellants ar<\/p>\n
10.00 : RESULT:\n<\/p>\n
\t(i)In the result, conviction of the appellants for offences under Section 302 read with 34, 120(B), 148 I.P.C., is confirmed\n<\/p>\n
\t(ii)However, conviction and sentence of the appellants for the offence under Section 341 I.P.C is set aside and they are acq\n<\/p>\n
\t (iii)The appeal is dismissed.\n<\/p>\n
\t\t\t\t\t\t  (M.C., J.)  (M.E.N.P., J)
\n\t\t\t\t\t\t\t\t  10.07.2006
\nIndex:Yes\/No
\nInternet:Yes\/No
\ngcg<\/p>\n
                                        M.CHOCKALINGAM, J
\n                                       AND
\n                                       M.E.N.PATRUDU, J
\n\t\t\t\t\t\t\t\t\t\t\tgcg
\nTo
\nState represented by
\nInspector of Police,
\nC.B.C.I.D., Madurai,
\nKarimedu Police Station,
\nMadurai District.\n<\/p>\n
\t\t\t\t\t\t\t   Crl.A.No.953 of 2003<\/p>\n
\t\t\t\t\t\t\t\t\t10.07.2006<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Abuthagir vs The State Rep. By on 10 July, 2006 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.07.2006 CORAM: THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.E.N.PATRUDU Criminal Appeal No.953 of 2003 1.Abuthagir 2.Ashik 3.Jafri @ Syed Zheer Ahamed, 4.Aslam … Appellants Vs. The State rep. by Inspector of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-136147","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAbuthagir vs The State Rep. By on 10 July, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/abuthagir-vs-the-state-rep-by-on-10-july-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Abuthagir vs The State Rep. 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