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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1741 OF 2010

UDAYAKUMAR … APPELLANT

VERSUS

STATE OF TAMIL NADU … RESPONDENT

JUDGEMENT

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

Signature Not Verified

Digitally signed by

judgement delivered by High Court dated 15.03.2010 in

Narendra Prasad
Date: 2023.03.17
16:35:12 IST
Reason:
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Criminal Appeal No. 17, 22 and 24 of 2010 titled as

Udayakumar & Ors. v. The State of Tamil Nadu.

2. Significantly, in terms of the very same impugned

judgement, 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

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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 v. Panneerdass & Ors.

the Ld. Trial Court, convicted all the accused in relation to

the offences charged for and sentenced them to a term of life

imprisonment.
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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 judgement 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.

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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 case of Anil Phukan v. State of Assam,

(1993) 3 SCC 282 has held that:

“ 3. … So long as the single eyewitness is a wholly
reliable witness the courts have no difficulty in basing
conviction on his testimony alone. However, where the
single eyewitness is not found to be a wholly reliable
witness, in the sense that there are some
circumstances which may show that he could have an
interest in the prosecution, then the courts generally
insist upon some independent corroboration of his
testimony, in material particulars, before recording
conviction. It is only when the courts find that the
single eyewitness is a wholly unreliable witness that
his testimony is discarded in toto and no amount of
corroboration can cure that defect…”

Examining the testimony of PW-1, we find him to be

materially contradicted and his version belied through the

testimony of the Investigation Officer, (PW-23). This is with

regard to the identification of the accused. Whereas the

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former states that he identified the accused in front of the

judge, pursuant to the summons issued to him for making

himself available at Pulhal Jail, Chennai for the purpose of

identifying the accused, but the latter, in unequivocal terms

states that, “… it is correct to say that PW-1 would give the

statement that they came to know that the second accused

Udayakumar had murdered Purushothaman” and that “it is

correct to say that only after identifying the accused at the

Police Station, they had identified the accused at the

identification parade.” Now, if the identity of the accused

was already in the knowledge of the police or the witnesses,

then we only wonder, where would the question of

conducting the identification parade arise? We reiterate that

the entire necessity for holding an investigation parade can

arise only when the accused 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. [Heera v State of

Rajasthan (2007) 10 SC 175]. We may also state that the

investigation parade does not hold much value when the identity
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of the accused is already known to the witness. [Sheikh Sintha

Madhar v. State, (2016) 11 SCC 265]. This Court has

elaborately stated the purpose of conducting the

identification parade in the case of State of Maharashtra v.

Suresh, (2000) 1 SCC 471 as:

“22. … We remind ourselves that 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 prisoner 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. So the officer conducting the test
identification parade should ensure that the said
object of the parade is achieved. If he permits dilution
of the modality to be followed in a parade, he should
see to it that such relaxation would not impair the
purpose for which the parade is held [vide Budhsen v.
State of U.P. (1970) 2 SCC 128; Ramanathan v. State
of T.N. (1978) 3 SCC 86].”

Further in Gireesan Nair & Others v. State of Kerala

(2023) 1 SCC 180, the Court observed that:

“44.…this Court has categorically held that where the

accused has been shown to the witness or even his
photograph has been shown by the investigating
officer prior to a TIP, holding an identification parade
in such facts and circumstances remains
inconsequential.
45. Another crucial decision was rendered by this
Court in Sk. Umar Ahmed Shaikh v. State of
Maharashtra (1998) 5 SCC 103, where it was held:
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8. … But, the question arises : what value

could be attached to the evidence of identity of
accused by the witnesses in the Court when
the accused were possibly shown to the
witnesses before the identification parade in
the police station. The Designated Court has
already recorded a finding that there was
strong possibility that the suspects were shown
to the witnesses. Under such circumstances,
when the accused were already shown to the
witnesses, their identification in the Court by
the witnesses was meaningless. The statement
of witnesses in the Court identifying the
accused in the Court lost all its value and could
not be made the basis for recording conviction
against the accused….”

10. If the theory of conspiracy was disbelieved by the High

Court then in our considered view, there was no basis or

reason to have upheld the conviction of A-2, more so, when

on the basis of the very same set of evidence led by the

prosecution, the principle conspirators involved in the crime

were acquitted.

11. Unfortunately in the impugned judgement, there is neither

any reasoning, nor any appreciation of evidence on record.

We cannot convict the accused on the basis of the principles

of preponderance of probability. It is our duty to make sure

that miscarriage of justice is avoided at all costs and the

benefit of doubt, if any, given to the accused. [Sujit Biswas

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v. State of Assam, (2013) 12 SCC 406, Hanumant

Govind Nargundkar v. State of M.P. (AIR 1952 SC 343)

and State v. Mahender Singh Dahiya, (2011) 3 SCC 109].

12. We may also record that in the impugned judgment running

into 21 pages, the High Court has extensively dealt with the

theory of conspiracy and guilt of A-1 and A-3 and only in

the penultimate part, that is, paragraphs 26 and 27,

casually, dealt with the guilt of the A-3.

13. In our considered view, prosecution has failed to establish

the guilt of the accused much less meeting the requirement

of the same having been established beyond reasonable

doubt.

14. In the present case before us, we find neither the chain of

evidence to have been completely established nor the

circumstances, conclusively pointing towards the guilt of

commission of crime by the Appellant. The prosecution has

failed to prove its case beyond reasonable doubt. This Court

has stated essential conditions that must be fulfilled before

an accused can be convicted in a case revolving around

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circumstantial evidence in the landmark case of Sharad

Birdhichand Sarda v. State of Mahrashtra, (1984) 4 SCC

116.

15. In the normal course of adjudication followed by this Court,

when there is a concurrent findings of fact by the Courts

below, this Court interferes only in exceptional cases or

where gross errors have been committed which overlook

crying circumstances and well established principles of

criminal jurisprudence. [Ramaphupala Reddy v. State of

Andhra Pradesh, (1970) 3 SCC 474, Balak Ram v. State

of U.P., (1975) 3 SCC 219, Bhoginbhai Hirjibhai V. State

of Gujarat, (1983) 3 SCC 217]. Hence in the attending

circumstances, it becomes our bounden duty to correct

such findings.

16. To conclude, we state that the judgments of conviction and

sentence in respect to the appellant present before us,

Udayakumar (A-2), passed by the Ld. Trial Court in S.C. No.

113 of 2009 dated 04.12.2009 as affirmed by the High

Court in Criminal Appeals No. 17, 22 and 24 of 2010 dated

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15.03.2010 titled as Udayakumar & Ors. v. The State of

Tamil Nadu are quashed and set aside.

17. Appeal stands allowed.

18. Since the appellant is already on bail, his bail bond shall

stand discharged.

………………J.
(B.R. Gavai)

……………..…J.
(Sanjay Karol)

Dated: 16th March, 2023

Place: New Delhi