Holding

Delay in examining prosecution witnesses does not per se invalidate their testimony, and the prosecution evidence taken as a whole sufficiently proves the guilt of the accused under s.302 r.w. s.34, s.120B and s.148 IPC.

Summary

The case concerns the murder of Assistant Jailor Jayaprakash near Madurai Central Jail on 29 August 1997. The accused, including Abuthagir, were convicted under IPC sections 302 read with 34, 120B and 148 based largely on the testimony of two eye‑witnesses (PW‑3 and PW‑4) who gave statements after a delay, having seen the accused’s photographs in the press. The appellants challenged the convictions, arguing that the delayed recording of the witnesses’ statements rendered their testimony unreliable, that identification was infirm, and that the prosecution had not proved a conspiracy. The Supreme Court held that a delay in examining prosecution witnesses does not, by itself, create doubt about their veracity, especially when the witnesses are independent and have no enmity with the accused. The Court found the totality of the evidence – including material recoveries, confessions, and the eye‑witnesses – sufficient to sustain the convictions. The appeal was dismissed.

Issues considered

The effect of delay in recording statements of prosecution witnesses on the reliability of their testimony.
Whether the eye‑witnesses' identification of the accused is reliable despite the delay.
Whether the prosecution proved the elements of criminal conspiracy under s.120B IPC.
Whether the convictions under s.302 r.w. s.34, s.120B and s.148 IPC are sustainable on the evidence presented.

Legislation cited

Code of Criminal Procedure, 1973s. 161, s. 313
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 120B, s. 148, s. 302, s. 34

Subjects

murdercriminal conspiracyeye‑witness testimonydelay in witness examinationIPC s.302IPC s.34IPC s.120BIPC s.148evidence appraisalIndian Evidence ActCriminal Procedure Code

Judgment

[2009) 8 S.C.R. 432
, -
A ABUTHAGIR AND ORS.
v.
STATE REP. BY INSPECTOR OF POLICE, MADURAI
(Criminal Appeal No. 26 of 2007)

B MAY 8, 2009
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] i

Penal Code, 1860 - s. 302 r!w s. 34, s. 120 and s. 148 -
c Conviction under, by courts below relying on evidence of eye-
witnesses - Interference with - Held: Not called for, as no
infirmity in conviction order - Prosecution witnesses were
independent - They had no enmity with the accused - Merely
because they revealed the truth long time after seeing the
photos of the accused persons would not be factor to discard ..
D
their evidence.

Criminal Law- Delay in examining prosecution witnesses
during the course of investigation - Effect on prosecution case
- Held: Not fatal - On facts, since no question was specifically
E put to investigating officer as to why there was delay in
recording the statement of witnesses, no reason to create
doubt regarding veracity of prosecution case. . .
The courts below convicted the appellants under
F s.302 r.w. s.34, s.1208 and s.148 IPC on the basis of
evidence of eye witnesses. Hence the appeal.

Dismissing the appeal, the Court

HELD: 1. The prosecution version has to be judged
G as a whole having regard to the totality of the evidence. ~

In appreciating the evidence, the approach of the Court
"
must be integrated and not truncated or isolated. The
Court has to appreciate in reaching the conclusion about

H 432
ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 433
OF POLICE, MADURAI
·- 'f
the guilt of the accused, analyse and assess the evidence A
placed before it by the yardstick of probabilities, its
intrinsic value and the animus of the witnesses. It is well
settled that delay in examination of the prosecution
witnesses by the police during the course of investigation
ipso facto may not be a ground to create a doubt regarding B
the veracity of the prosecution's case. So far as the delay
in recording a statement of the witnesses is concerned,
no question was put to the investigating officer
specifically as to why there was delay in recording the
statement. Unless the investigating officer is categorically c
asked as to why there was delay in examination of the
witnesses the defence cannot gain any advantage
therefrom. It cannot be laid down as a rule of universal
application that if there is any delay in examination of a
.... particular witness the prosecution version becomes D
" suspect. It would depend upon several factors. If the
explanation offered for delayed examination is plausible
and possible and the Court accepts the same as plausible
there is no reason to interfere with the conclusion. [Para
9] (445-8-F]
E
Devender Pal Singh v. State of N. C. T. of Delhi and Anr.
AIR (2002) SC 1661; Hithendra Vishnu Thakur v. State of
.. " · Maharashtra AIR (1994) SC 2623; Mohd. Khalid v. State of
West Bengal (2002) 7 SCC 334; Harijana Thirupala and Ors.
v. Public Prosecutor Andhra Pradesh (2002) 6 SCC 470; F
Ranbir and Ors. v. State- of Punjab AIR (1973) SC 1409;
Bodhraj @ Bodha and 21?· v. State of Jammu and Kashmir
(2002) 8 SCC 45; Bant1 @ Guddu v. State of M.P. (2004) 1
sec 414 and State of U.P. v. Satish AIR 1004 SC 261,
relied on. G
~

2.1. It is seen that the PWs 3 and 4 disclosed that they
witnessed the incident. Before PW-22 their evidence was
recorded. The incident took place on 29.8.1997 and the
accused persons were arrested after about 8 months. Till
H
434 SUPREME COURT REPORTS [2009] 8 S.C.R.
,, -t·
A the arrest of the accused the statements of PWs 3 and 4
were not recorded under Section 161 CrPC. After arrest
because their photos were published in the newspapers,
that is how PWs 3 and 4 came to the police station on
their own accord on two different occasions and gave
B statements. PWs 3 and 4 had no interest either for
prosecuting the accused or making a statement in the
defence. They were independent witnesses. In such a
j
case it is absurd to hold that investigating officer had
erred in recording the statement of PWs 3 and 4. The
c investigating agency was making all possible efforts to
know the names of the witnesses. This factor cannot be
doubted. [Para 9] [445-G-H; 446-A-C]

Bachittar Singh and Anr. v. State of Punjab (2002) 8 SCC
125; Vemireddy Satyanarayan Reddy and Ors. v. State of
D Hyderabad AIR 1956 SC 379, relied on. ;c

2.2. A witness is normally considered to be an
independent witness unless he springs from the sources
which are likely to be tainted such as enmity. As PWs 3
E and 4 had no enmity with the accused they were
independent and natural witnesses. They were not under
the control of the police and did not have in any sense
any obligation to the police. Since they revealed the truth 4
•
after long time after seeing the photos of the accused
F persons, that cannot be a factor to discard their evidence.
[Para 11] (446-F-H; 447-A]

Sardul_ Singh v. State of Haryana AIR 2002 SC 3462,
relied on.

G 2.3. PW-3 was a mason by profession and PW-4 was
a petty seller of sarees. Their courage in coming forward
to depose against the accused persons is appreciable.
They are from the lowest status of the society who took
courage to stand up, picked and identified the accused
H persons. PWs 2 and 3 stated that they witnessed the
ABUTH;\GIR ANQ QR~- v. STATE REP. BY INSPECTOR 435
QF. PQblC.E. MADURAI
incident from a place vvh!ch was just near the Central Jail. A
In a bright day light the murder took place. Therefore,
there was no infirmity in the identification. The evidence
of PWs 10, 19 and 22 clearly proved the recoveries and
disc9veries. Apart from that there was recovery of the
material objects. The investigator was able to locate the B
STD booth from where the accused tal~ed with others.
This was also an important factor which was discovered
t at the instance of known accused persons. There was a
minor discrepancy pointed out as to what PWs 3 and 4
spoke about the manner of arrival of the motor riders. PW- c
3 stated that they came when the deceased was crossing
the road while PW-4 stated that they were already there.

- _,
This was too a trivial matter to corrode the credibility of
the witnesses who were being examined after a length
of time. The impugned judgment does notsuffer from any
'--'-~(
D
,.~ ,_
infirmity to warrant interference. [Paras 12, 14 and 16)
(447-D-F; 448-C-D; 452-E-F]
Case Law Reference:
AIR (2002) SC 1661 relied on Para 5 E
AIR (1994) SG 2623 relied on Para'6

..... ~ \ 2002 1 sec 334 relied on Para 7
~
2002 6 sec 470 relied on Para 8
F
AIR (1973) SC 1409 relied on Para 9
2002 a sec 45 relied on Para 9
2004 1 sec 414 relied on Para 9
AIR 1004 SC 261 relied on Para 9 G
. ~

2002 a sec 125 relied on Para 10
AIR 1956 SC .379 relied on Para 11
AIR 2002 SC 3462 relied on Para 11 H
436 SUPREME COURT REPORTS [2009] 8 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 26 of 2007.

From the Judgment & Order dated 10.7.2006 of the High
Court of Madras, Madurai Bench in Crl. Appeal No. 953 of
2003.
B
Sushil Kumar, Adolf Mathew, Aditya Kumar, Meenakshi
Kumar, Vinay Arora and Sanjay Jain for the Appellant.

R. Shunmugasundram, V.G. Pragsam, S.J. Aristotle, Prabu
c Ramasubramaniam for the Respondents.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
to the judgment of a Division Bench of the Madras High Court
D upholding the conviction of the appellants for offence punishable .._
-
under Section 302 read with Section 34, Section 120B and l .
,,.--
Section 148 of the Indian Penal Code, 1860 (in short the 'IPC').
However, the conviction and consequential sentences imposed
for offence punishable under Section 341 IPC was set aside.
E
2. Background facts in a nutshell are as follows:

Balan Alagiri (PW-5) was working as a Superintendent of
Madurai Central Prison during the period May 1996 to October +
1998. During that period Krishnan (PW7), Chokkalingam ...
F (PW20) werE;l also working on 30/05/1997. One accused
detained under TADA was brought from Chennai Central prison
and produced before Coimbatore Court and returned back to
Madurai Central Prison. Wben the Assistant Jailor Jayaprakash
intend to have body search and examination of identification
G marks the accused Sahul Hameed refused to allow him to have
body search and refused to show identification marks. The ~

intimation was given to PW 20. The accused was taken to his
office and was instructed to concede for body search. But he
declined to do so. The said Jayaprakash tried to remove the
H
ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 437
OF POUGE, MADURAI [DR. ARIJIT PASAYAT, J.]
~

shirts. At the time the Sahul Hameed has proclaimed that "ln~ha A
.Allah! YO\J have to answer for this" after that he was examined
and sent to 6th block and detained in a separate cell. Whenever
the relative~ visit the jail, the Assistant Jailer Jayaprakash used
to verify the things as per rules and regl!lations. Enraged by this,
the said Sahul ·Hameed had cbmpfai11ed to PW-5 that the B
Assistant Jailor has assaulted and ins4lted his religion.

Some members of an association also made an agitation
before the District Collector, and affixed wall-posters. Sahul
Hameed also reported the matter against the Jayaprakash to
his superior officers and gave a statement also. The
c
association members of Sahul Hameed also wrote a letter
informing to identify the person Who has caused annoyance to
him and we will teach him a lesson. The said letter was
received by PWS and handed over to Superior Officer for further
proceedings. The letter sent to Sahul Hameed is Ex.P2 series. D
Letter containing some religious verses is EX-P-3 and the
cover is EX-P.4, printed format sent to a High Court Judge of
the Madras High Court.

This case relates to an incident on 29.8.1997 around 3 E
p.m. near the central jail.

According to the first report and the preliminary
·--~
..... - investigation of police, three or four unidentified persons came
on motor cycles and attacked the deceased with sickles and
F
knives and having killed him fled away. The usual investigation
proceeded without much progress on the identity of culprits.
The C.B.C.l.D. Police of the State took up further investigation.
Even they could not get any clue immediately.
I
\

While the big break through of the case is the Crime G
,,# t No.741/1998 of Kodambakkam Police Station; The first
'
appellant was arrested in that crime registered under Sections
120(b), 307 IPC. His interrogation disclosed the involvement
of all the appellants and the other absconding accused in this
case. Resulting orders of police custody of the appellants, and H
438 SUPREME COURT REPORTS [2009] 8 S.C.R.

A their interrogation leading to discovery of incriminating facts
•
under Section 27 of Indian Evidence Act, 1872 (in short the
'Act') connecting the accused with crime; the fact of arrest of
appellants are published in the media with their photographs.
On seeing their photographs the two witnesses i.e. PW3 and
B PW4 gave statements to police that they witnessed the murder
and appellants are the assailants. Later the charge sheet was
laid. As accused persons pleaded innocence, trial was held.

Saroja (PW-2) is a Sugarcane vendor in front of Madurai /

Prison. Shannlugam (PW-3) is a mason, Lakshmi (PW-4) is
c doing Textile business. PW3 has stated that 4 years before at
about 3 P.M., when he was proceeding on the west to east by
his bicycle to Arsaradi in front of the Jail main gate, he found a
sugar cane juice vehicle and he was taking a sugar cane juice.
At that time a person wearing jail Sub-Inspector Uniform, was
D riding a bicycle near to Sugarcane vehicle two Yamaha vehicles
were parked. While the Sub-Inspector has crossed the sugar
cane vehicle the person has taken the Aruval from his blue
colour jeans bag and assaulted him on his neck and he has
resisted by his left arm and also a cut injury and he has fallen
E down. Along with a person who has assaulted, yet another 4
persons have inflicted injury by knife and Aruval. After that three
persons on one bike and two persons on another bike has
started proceeding towards east. The occurrence was seen by ...,,.
Saroja (PW2), Shanmugam (PW-3) and PW4 Lakshmi.
F
On 29-8-1997 around 3 p.m. Mohammed Sulaiman (PW-
1) when he was in the guard duty a person parked his scooter
and informed him that near to the prison main gate a Sub-
Inspector who was riding bicycle with uniform was assaulted
by four persons and ran away towards east. Immediately he
G
rushed to the spot and found that the Assistant Jailor ~ ....
Jayaprakash was found dead and he has given intimation to
his officers. On their instructions PW 1 has preferred a
complaint to the Karimedu P.S. The Inspector of Karimedu P.S,
Mary George (PW-21) has received the complaint EXP1 and
H
ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 439
OF POLICE, MADURAI [DR. ARIJIT PASAYAT, J.]
~
preferred an F.l.R. EXP 27 and sent to Magistrate and other A
officers. Subsequently she has visited the place of occurrence
and preferred observation mahazar in the presence of
Alamarathan (PW-6) and Pandi EXP 29 is a observation
mahazar and ExP28 a rough sketch was prepared. The police
Photographer Shanmugasundaram (PW-18) has taken the B
photographs of the place of occurrence and a dead body in
different angles. MO 6 is a negative and MO 17 are
• Photographs. An inquest was conducted in the presence of
Panchayathar and inquest report was prepared and dead body
was sent through David Shamuvel (PW 19) for Post mortem. c
MOs 19 to 24 were recovered in the presence of PW-20 and
witnesses were examined and evidences were recorded. Dr.
... Maiyazagan (PW-12) has started post mortem on 30-8-1997
at 10.10 a.m. On receipt of the requisition which is ExP 15 from
the Inspector (PW-21), he found 21 injuries and the first injury
D
would be the cause of death. And injuries 2, 3 and 6 can cause
death in natural course. Dr. Maiyazagan has suggested that all
the injuries together would cause death and the rest of injuries,
though it is simple would cause death in future. The injuries
were inflicted by a sharp edged weapon like Aruval and deep
injury would cause by one side sharped weapon and issued a E
post mortem certificate EX.P. 16.

After post mortem the MOs 8 to 12 were seized and dead

-
.A

body handed over to his relatives and the recovered material
objects handed over to PW21. During the examination of F
PW21, during the pendency of this case as per the order of
government, the case was handed over to CBCID, Madurai on
21-09-1997.

During the course of investigation by the Inspector of
G
0
CBCID, Sundaram (PW-22) on the basis of statement given
' by 1st accused Abuthahir in connection with Kodambakkam
Cr.No.741/98, U/Ss. 307, 305 and 120(b) l.P.C, he came to
(
know that all the accused and the absconding accused Raja
@ Tailor Raja have murdered Jayaprakash. On 4-5-1998
H
440 SUPREME COURT REPORTS [2009] 8 S.C.R.

A accused Abuthakir was produced under PT warrant and ""
brought to Madurai and Police Custody was taken from 26·5-
1998 to 30-5-1998 for four days and he has given a confession
before the Village Administrative Officer, Sethu Ramasamy
(PW9) and Thalaiyari Gartcsh. On the basis of an admitted
B portion of Ex.P.7 the Hotel Service occupance Register from
17-9-1997 to 27-9-1997 MOI. Bill No.2501 dated 8-8-1997 to
Bill No.2600 dated 2-9-1997 Cash Bill Book M02, and lodge
maintenance register for Room No.107 from 25-8-1997 to 16-
5-1998 anti Room No. 111 from 2 1-8-1997 to 24-5-1998
c maintenance register M04 were recovered under EX.P-8.

Further the Model signature denoted as R. Kumar was
obtained in the presence of witnesses. MOs I to 4 were
recovered from PW 10 Mayavan, who is a lodge cletk and
cashier. Further an affixation for PT Warrant has been given to
-
D Accused Aasik and he was remanded on 23-6-98 subsequently
he was taken to police custody from 23.6.98 to 25.6.98 and
he was examined in presence of Village Administrative Officer
(PW-14) Velusamy and Thalaiyari Shanmugavel and
confession was recorded.
E
On the basis of an admitted portion of Ex.P.33 in the
presence of witnesses the accused was taken to Trichy bus
stand and was identified by the accused. Yamaha Motor Cycle
• ..
F
(M05) was recovered from the two wheeler stand under ExP34.
On 24.6.1998 he was sent to Judicial Custody. Further on 24-
6-1998 an application was given for PT warrant for accused
-
Aslam and Jafru, and they were remanded on 2-7-1998. From
2-7-1998 to 3-7-1998 accused were taken under police custody
and examined in the presence of the witnesses and confession
was recorded. As specimen signature name as David in Tamil
G
as well as English was obtained and the same was sent
alongwith the accused for judicial custody on 3.7.1998. '
Accused Jafru was produced under PT warrant on 16.7.1998
and police custody was ordered from 16.7.1998 to 18-7-1998
on an application. He was exam.ined and confession was
H
ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 441
OF POLICE, MADURAI [DR. ARIJIT PASAYAT, J.]

recorded in the presence of Village Administrative Officer A
Kamaraj (PW5) and Thalaiyari Mohan. On the basis of an
admitted portion of EX-P.35 he has taken witnesses and the
Inspector and identified the STD Booth, run by Ponnazlagu,
Tel.No.705564 situated on the 1st floor of Door No.66A, and he
has confessed that he has made a call to Chennai and in B
between the periods 27-7-1997 to 12-10-1997 the note book
maintained in the office for day time, and charges for Telephone
.. • calls were recovered under EX-P.26. The requisition was given
to the Manager, Tele Communication, Trichy for seeking the
Computer printout for the periods 18-8-1997 to 15-10-1997 c
regarding the communication to telephone No.705564 and on
17-7-1998 the accused Jafru was remanded to Judicial
Custody .
•

.
'
The requisition given under EX-14 to Judicial Magistrate
No.VI, Madurai for comparison of the signature of the A 1 & D
A2 to hand writing Expert Murali (PW-11), Bakhyam Hotel Cash
receipt No.2590 dated 29-8-1997 and the English Signature
of David was marked as QI. Hotel receipt No.2589 dated 29-
8-1997 the Carban Signature of K. Kumar is "02" and Carbon
signature of David in the lodge attendance register dated 27- E

'' 8-1997 at Page 564 is "Q3". Carbon signature of K. Kumar in
the lodge attendance register dated 27-8-1997 at Page 564
~ is "Q4". Specimen name of Aslam sent for report containing
•
...,.. 10 papers Ex. P .11 letters marked as S 1 to S60 as such
specimen signature of Abuthakir containing 6 papers which is F
4 EX.P 2 the letters were marked as S61 to 144 and after
research PW 13 has given an opinion that the letters marked
as S 1 to S24 were written by a person who has signed 03,
S61 to S 144 letters were written by a person who has signed
4 02 and 04. G
,J

Since accused Raja was absconded the case was split
up against him before the lower Cou~. Twenty two witnesses
were examined, 39 documents were exhibited and 25 material
objects were marked. The trial Court held that the prosecution
H
442 SUPREME COURT REPORTS [2009) 8 S.C.R.

A had established the accusations and accordingly convicted and
sentenced them. Four of the accused persons filed appeal
before the High Court. Before the High Court the primary stand
was that PWs 3 and 4 stated to be the two eye witnesses.
Identification of the accused by PWs 3 and 4 was not
B established. The so called discovery/recovery at the instance
of the accused persons is not believable. No motive Was
established and no conspiracy was proved. The High Court held
that the appeal was sans merit. It did not find any substance in
the plea of the appellants that there was an inordinate delay in
..
c examination of PWs 3 and 4. So far as the identification is
concerned the High Court found that the stand of the appellants
that the identification was not truthful is not correct. So far as
the discovery of the various photos, the High court noted that
the circumstances of the recovery on its own may not be·
sufficient to connect the accused, but the cumuiative effect of
0
several factors coupled with the evidence of PWs 3 and 4
strengthened the case of the prosecution. It also held that the
motive was clearly established and so was the conspiracy.

Apart from re-iterating the stand taken before the High
E Court learned counsel for the appellants submitted that on the
purported basis of confession of A-3 that he has informed
through STD booth Trichi informing to Batcha Bai on a

-
.
particular telephone that he finished the matter, there was no
corroboration.
F
3. Learned counsel for the appellants submitted that
incrimination materials were not put to the accused in the
examination under Section 313 of the Code of Criminal
Procedure, 1973 (in short the 'Code'). Original prosecution
G case was that four accused persons attacked the victim and
there were no motor cyclists. The first investigation suspected
four different accused. The second investigation came up with
five different accused persons without any evidence against
them excepting their so called admission before the eye
witnesses.
H
l
....,
' ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 443
OF POLICE, MADURAI [DR. ARIJIT PASAYAT, J.)
-1

4. Learned counsel for the respondent on the other hand A
supported the judgment of the trial Court as affirmed by the High
Court.

5. In Devender Pal Singh v. State of N.C. T. of Delhi and
Anr. (AIR 2002 SC 1661), it was observed as follows:
B
"Menace of terrorism is not restricted to one country, and
_. .. it has become a matter of international concern ....Whether
the criminal act was committed with an intention to strike
terror in the people or section of people would depend
upon the facts of each case". c
'
6. In Hithendra Vishnu Thakur v. State of Maharashtra
(AIR 1994 SC 2623), it is held as follows:

"It is a common feature that hardened criminals today take
advantage of situation and by wearing the cloak of 0
terrorism, aim to achieve acceptability and respectability
in the society; because in different parts of the country
affected by militancy, a terrorist is projected as a hero by
a group and often even by many misguided youth" ..
"Cynics have often commented that one State's "terrorist" E
is another State's "freedom fighter."
~
.-" 7. In Mohd. Khalid v. State of West Bengal (2002 (7) SCC

. 334) at para 46 it is observed as follows:
F
"46. Terrorism is one of the manifestations of increased
lawlessness and cult of violence. Violence and crime
constitute a threat to an established order and are a revolt
against a civilised society. "Terrorism" has not been
. defined under TADA nor is it possible to give a precise
.G
• definition of "terrorism" or lay down what constitutes
"terrorism". It may be possible to describe it as use of
violence when its most important result is not merely the
physical and mental damage of the victim but the prolonged
psychological effect it produces or has the potential of
producing on the society as a whole. There may be death, H
444 SUPREME COURT REPORTS [2009] 8 S.C.R.
~

A injury, or destruction of property or even deprivation of
individual liberty in the process but the extent and reach
.J of the intended terrorist activity travels beyond the effect · '
~

of an ordinary crime capable of being punished under the
ordinary penal law of the land and its main objective is to
B overawe the Government or disturb the harmony of the
society or "terrorise" people and the society and not only
a
those directly assaulted, with view to disturb the even -;
"-
tempo, peace and tranquility of the society and create a
sense of fear and insecurity.
c 8. In Harijana Thirupa/a and Ors. v. Public Prosecutor
Andhra Pradesh (2002 (6) SCC 470), it was held as follows:

"11. In our administration of criminal justice an accused
is presumed to be innocent unless such a presumption is
D rebutted by the prosecution by producing the evidence to
show him to be guilty of the offence with which he is
charged. Further if two views are possible on the evidence
produced in the case, one indicating to the guilt of the
accused and the other to his innocence, the view
E favourable to the accused is to be accepted. In cases .
where the court entertains reasonable doubt regarding the
guilt of the accused the benefit of such doubt should go in
favour of the accused. At the same time, the court must ...
not reject the evidence of the prosecution taking it as false,
F untrustworthy or unreliable on fanciful grounds or on the
basis of conjectures and surmises. The case of the
prosecution must be judged as a whole having regard to
the totality of the evidence. In appreciating the evidence
the approach of the court must be integrated not truncated
or isolated. In other words, the impact of the evidence in
G
totality on the prosecution case or innocence of the •
accused has to be kept in mind in coming to the
conclusion as to the guilt or otherwise of the accused. In
reaching a conclusion about the guilt of the accused, the
court has to appreciate, analyse and assess the evidence
H
ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 445
OF POLICE, MADURAI [DR ARIJIT PASAYAT, J.]

placed before it by the yardstick of probabilities, its intrinsic A
value and the animus of witnesses. It must be added that
ultimately and finally the decision in every case depends
upon the facts of each case."

9. The prosecution version has to be judged as a whole
B
having regard to the totality of the evidence. In appreciating the
evidence the approach of the Court must be integrated and not
• truncated or isolated. The Court has. to appreciate in reaching
the conclusion about the guilt of the accused, analyse and
assess the evidence placed before it by the yardstick of
probabilities, its intrinsic value and the animus of the witnesses.
c
Much emphasis has been led by learned counsel for the
appellants on the alleged delayed examination of the witnesses.
It is well settled that delay in examination of the prosecution
witnesses by the police during the course of investigation ipso
facto may not be a ground to create a doubt regarding the D
veracity of the prosecution's case. So far as the delay in
recording a statement of the witnesses is concerned no
question was put to the investigating officer specifically as to
why there was delay in recording the statement. Unless the
investigating officer is categorically asked as to why there was E
delay in examination of the witnesses the defence cannot gain
any advantage therefrom. It cannot be laid down as a rule of
... ~

universal application that if there is any delay in examination
of a particular witness the prosecution version becomes
suspect. It would depend upon several factors. If the explanation F
offered for delayed examination is plausible and possible and
the Court accepts the same as plausible there is no reason to
interfere with the conclusion. (See Ranbir and Ors. v. State of
Punjab (AIR 1973 SC 1409), Bodhraj@ Bodha and ors. v.
State of Jammu and Kashmir (2002 (8) SCC 45), Banti @ G
i
A
Guddu v. State of M.P. (2004 (1) sec 414) and State of U.P.
v. Satish (AIR 1004 SC 261). It is seen that the PWs 3 and 4
disclosed that they had witnessed the incident. Before PW-22
their evidence was recorded. The incident took place on
29.8.1997 and the accused persons were arrested after about H
446 SUPREME COURT REPORTS [2009] 8 S.C.R.

A 8 months. Till the arrest of the accused the statements of PWs
3 and 4 were not recorded under Section 161 of Code. After
arrest because their photos were published in the newspapers,
that is how PWs 3 and 4 came to the police station on their
own accord on two different occasions and gave statements.
B It has been submitted by learned counsel for the appellants that
PWs 3 and 4 did not disclose the incident to any one. They have
no interest either for prosecuting the accused or making a
statement in the defence. They are independent witnesses. In
such a case it is absurd to hold that investigating officer had
c erred in recording the statement of PWs 3 and 4. The
investigating agency was making all possible efforts to know
the names of the witnesses. This factor cannot be doubted. If
really as comended by learned counsel for the appellants the
prosecution wanted to tamper some witnesses they could have
immediately done so after the incident.
0
· 10. In Bachittar Singh and Anr. v. State of Punjab (2002
(8) sec 125), it was observed by this Court as follows:

"Man proposes, God Disposes" is exactly what has
E happened here. What the accused thought was that they
were committing a hidden crime without realizing that they
had left behind clinching evidence against themselves."

11. It was noted by this Court in Vemireddy Satyanarayan
Reddy and Ors. v. State of Hyderabad (AIR 1956 SC 379) that
F it requires a courage in case of atrocity for a simple man to
come forward and proclaim the truth unmindful of the
consequences to himself. A witness is normally considered to
be an independent witness unless he springs from the sources
which are likely to be tainted such as enmity. Here again it
G would depend upon the facts of each case. In the instant case,
as PWs 3 and 4 have no enmity with the accused they are
•
independent and natural witnesses. They are not under the
control of the police and do not have in any sense any
obligation to the police. Since they have revealed the truth after
H long time after seeing the photos of the accused persons, that
ABUTHAGIR NJD ORS. v. STATE REP. BY INSPECTOR 44 7
OF POLICE, MADURAI [DR. ARIJIT PASAYAT, J.]
-;
I
cannot be a factor to discard their evidence. In Sardul Singh A
v. State of Haryana (AIR 2002 SC 3462) it was held as follows:

'There cannot be a prosecution case with a cast iron
perfection in all respects and it is obligatory for the courts
to analyser sift and assess the evidence of record, with
B
particular reference to its trustworthiness and truthfulness,
by a process of dispassionate judicial scrutiny adopting
apt objective and reasonable appreciation of the same,
•
without being obsessed by an air of total suspicion of the
case of the prosecution. What is to be insisted upon is not
implicit proof. It has been often been said that evidence c
of interested witnesses should be scrutinized more carefully
to find out whether it has a ring of truth ... Courts have a
duty to undertake a complete and comprehensive
appreciation of all vital features of the case and the entire
evidence with reference to the broad and reasonable D
probabilities of the case also in their attempt to find out.
proof beyond reasonable doubt".

12. PW-3 was a mason by profession and PW-4 was a
petty seller of sarees. Their courage in coming forward to E
depose against the accused persons needs to be appreciated.
Here are two persons from the lowest status of the society who
had taken courage to stand up, picked and identified the
: ' accused persons. PWs 2 and 3 have stated that they witnessed
the incident from a place which is just near the Central Jail. In
F
a bright day light the murder took place. Therefore, there is no
infirmity in the identification.

13. Section 27 of the Indian Evidence Act, 1872 (in short
the 'Evidence Act') deals with discovery. The same reads as
follows: G
·,... ....
"How much of information received from accused may be
proved- Provided that when any fact is deposed to as
discovered in consequence of information received from
a person accused of any offence, in the custody of a police H
448 SUPREME COURT REPORTS [2009] 8 S.C.R.

~

A officer, so mucn of such information, whether it amounts " '
to a confession or not, as relates distinctly to the fact
thereby discovered, may be proved."

In the instant case the following documents were relied
upon:
B
1. Bakkim Lodge record.

2. Handwritings of first and third appellants in the
registers.
c 3. Impersonation as Kumer and David.

14. The evidence of PWs 10, 19 and 22 clearly proved the
aforesaid recoveries and discoveries. Apart from that there has
been recovery of the material objects. The investigator was able
D to locate the STD booth from where the accused talked with
others. This also is an important factor which was discovered
at the instance of known accused persons. The concept of
conspiracy has been dealt with by this Court in several cases.
In Mohd. Khalid's case (supra), it was held as follows:
E
"17. It would be appropriate to deal with the question of
conspiracy. Section 120-8 IPC is the provision which
provides for punishment for criminal conspiracy. Definition
of "criminal conspiracy" given in Section 120-A reads as ' '
follows:
F
"120-A. When two or more persons agree to do, or
cause to be done,-

(1) an illegal act, or
G (2) an act which is not illegal by illegal means, such
an agreement is designated a criminal conspiracy:
... ~

Provided that no agreement except an agreement
to commit an offence shall amount to a crimin31
H conspiracy unless some act besides the agreement
ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 449
OF POLICE, MADURAI [DR. ARIJIT PASAYAT, J.]

' ~. is done by one or more parties to such agreement A
in pursuance thereof."

The elements of a criminal conspiracy have peen stated
to be: (a) an object to be accomplished, (b) a plan or
scheme embodying means to accomplish that object, (c) B
an agreement or understanding between two or more of
the accused persons whereby, they become definitely
committed to cooperate for the accomplishment of the
object by the means embodied in the agreement, or by any
effectual means, and (d) in the jurisdiction where the
statute required an overt act. The essence of a criminal
c
conspiracy is the unlawful combination and ordinarily the
offence is complete when the combination is framed. From
this, it necessarily follows that unless the statute so
requires, no overt act need be done in furtherance of the
conspiracy, and that the object of the combination need D
not be accomplished, in order to constitute an indictable
offence. Law making conspiracy a crime, is designed to
curb immoderate power to do mischief which is gained by
a combination of the means. The encouragement and
support which co-conspirators give to one another E
rendering enterprises possible which, if left to individual
effort, would have been impossible, furnish the ground for .
visiting conspirators and abettors with condign punishment.
,Ao ..
The conspiracy is held to be continued and renewed as
to all its members wherever and whenever any member F
of the conspiracy acts in furtherance of the common
design. (See American Jurisprudence, Vol. II, Sec. 23, p.
559.) For an offence punishable under Section 120-B, the
prosecution need not necessarily prove that the
perpetrators expressly agreed to do or caused to be done G

- an illegal act; the agreement may be proved by necessary
implication. The offence of criminal conspiracy has its
foundation in an agreement to commit an offence. A
conspiracy consists not merely in the intention of two or
more, but in the agreement of two or more to do an H
450 SUPREME COURT REPORTS [2009] 8 S.C.R.

A unlawful act by unlawful means. So long as such a design r >

rests in intention only, it is not indictable. When two agree .
to carry it into effect, the very plot is an act in itself, and an
act of each of the parties, promise against promise, actus
contra actum, capable of being enforced, if lawful,
B punishable if for a criminal object or for use of criminal
means.

18. No doubt in the case of conspiracy there cannot be
any direct evidence. The ingredients of the offence are that
there should be an agreement between persons who are
c alleged to conspire and the said agreement should be for
doing an illegal act or for doing by illegal means an act
which itself may not be illegal. Therefore, the essence of
criminal conspiracy is an agreement to do an illegal act
and such an agreement can be proved either by direct
D evidence or by circumstantial evidence or by both, and it
is a matter of common experience that direct evidence to
prove con:spiracy is rarely available. Therefore, the
circumstances proved before, during and after the
occurrence have to be considered to decide about the
E complicity of the accused.

xx xx xx

21. Privacy and secrecy are more characteristics of a • L
conspiracy, than of a loud discussion in an elevated place
F open to public view. Direct evidence in proof of a
conspiracy is seldom available, offence of conspiracy can
be proved by either direct or circumstantial evidence. It is
not always possible to give affirmative evidence about the
date of the formation of the criminal conspiracy, about the
G persons who took part in the formation of the conspiracy,
about the object, which the objectors set before
themselves as the object of conspiracy, and about the
-
manner in which the object of conspiracy is to be carried
out, all this is necessarily a matter of inference."
H

·-
ABUTHAGIR AND ORS. v. STATE REP. BY INSPECTOR 451
OF POLICE, MADURAI [DR. ARIJIT PASAYAT, J.]
'i. 15. In Devender Pal Singh's case (supra) it was .h~ld in A
paras 50 and 51 as follows:

"50. In Kehar Singh v. State (Delhi Admn.) (AIR 1988 SC
1883 at p. 1954) this Court observed: (SCC pp.732-33
para 275)
B
"275. Generally, a conspiracy is hatched in secrecy
and it may be difficult to adduce direct evidence of
• the same. The prosecution will often rely on
evidence of acts of various parties to infer that they
were done in reference to their common intention. c
The P,rosecution will also more often rely upon
circumstantial evidence. The conspiracy can be
~
undoubtedly proved by such evidence direct or
circumstantial. But the court must enquire whether
the two persons are independently pursuing the D
'· same end or they have come together to the pursuit
of the unlawful object. The former does not render
them conspirators, but the latter does. It is, however,
essential that the offence of conspiracy required
some kind of physical manifestation of agreement. E
The express agreement, however, need not be
proved. Nor actual meeting of two persons is
necessary. Nor is it necessary to prove the actual
_..
.. • words of communication. The evidence as to
transmission of thoughts sharing the unlawful
F
design may be sufficient."

Conspiracy can be proved by circumstances and other
materials. (See State of Bihar v. Paramhans Yadav (1986
Pat LJR 688)
G
._ 'To establish a charge of conspiracy knowledge
J
about indulgence in either an illegal act or a legal
,, act by illegal means is necessary. In some cases,
'
intent of unlawful use being made of the goods or
services in question may be inferred from the H
452 SUPREME COURT REPORTS [2009] 8 S.C.R.

A knowledge itself. This apart, the prosecution has not
to establish that a particular unlawful use was
intended, so long as the goods or services in
question could not be put to any lawful use. Finally,
when the ultimate offence consists of a chain of
actions, it would not be necessary for the
B
prosecution to establish, to bring home the charge
of conspiracy, that each of the conspirators had the
knowledge of what the collaborators would do, so
long as it is known that the collaborator would put
the goods or services to an unlawful use." (See:
c State of Maharashtra v. Som Nath Thapa (1996
(4) sec 659)

51. Where trustworthy evidence establishing all links of
circumstantial evidence is available, the confession of a
D co-accused as to conspiracy even without corroborative
evidence can be taken into consideration. (See Baburao
Bajirao Patil v. State of Maharashtra (1971 (3) SCC 432).
It can in some cases be inferred from the acts and conduct
of the parties. (See Shivnarayan Laxminarayan Joshi v.
E State of Maharashtra (1980 (2) SCC 465)."

16. There is a minor discrepancy pointed out as to what
PWs 3 and 4 have spoken about the manner of arrival of the
motor riders. PW-3 stated that they came when the deceased
was crossing the road while PW-4 stated that they were already ...
F there. This is too a trivial matter to corrode the credibility of the
witnesses who were being examined after a length of time. The
impugned judgment does not suffer from any infirmity to warrant
interference.

G 17. The appeal is dismissed.

D.G. Appeal dismissed.