SHELKH SINTHA MADHAR @ JAFFER @ SINTHA ETCversusSTATE REP. BY INSPECTOR OF POLICE

                           (2016) 2 S.C.R. 936



A      SHElKH SINTHA MADHAR @ JAFFER @ SINTHA ETC.
                                    v.
               STATE REP. BY INSPECTOR OF POLICE
                (Criminal Appeal Nos. 2118-2119 Of2009)
B                            APRIL 13, 2016
      [PINAKI CHANDRA GHOSE AND AMITAVA ROY, JJ.]
          Penal Code, IB60- ss. 148, 302, 201and120B - Conspiracy
  hatched by 13 accused in two groups (Al to A6 and A 7 to Al 3) to
  kill doctor, BJP town secretary-Al to A7 formed unlm1ful assembly
C -Al to A6 attacked the doctor with weapons resulting in his death,
  and A7 stood nearby unarmed - Deceased's daughter-PW I
  witnessed the incident - Conviction and sentence of Al to A6 for
  the offences punishable u!ss. 120-B read with s. 302, s. 14B ands.
  302 (Jnd A 7 for the offence punishable ulss. 147, I 09 read with s.
D 302 - However, A8 to Al 3 acquitted of all the charges - Order of
  trial court upheld by High Court - On appeal. held: Cogent and
  convincing evidence of PWI, corroborated by PW65 - PWI was
  not named in the inquest report as also first informant not named
  PWI in the complaint, such omission not fatal - PWI s statement
E cannot be rejected only on the ground that she is an interested
  witness - Statement of PWI corroborated by the medical examination
  - PWI saw the assailants at night because there was sufficient light
  to see them - No inordinate delay in conducting the TIP - Joint TIP
  would not affect the validity of TIP - Murder of the doctor proved
  by the aid of the eye-witnesses - Conspiracy proved beyond
F
  reasonable doubt between Al to A6 - Conviction qf Al to A6 based
  on proper appreciation of evidence, thus, does not call for
  interference - A 7 was charged for the offence u!s. 1091302 along
  with AB to Al 3 on the basis of the conspiracy hatched and AB to
  Al3 have been acquilled - Offence of s.147 not proved beyond
G reasonable doubt and A 7 's presence doubtjiil - Thus, A 7 not liable
   for abetment to commit murder by Al to A6 and his conviction is set
   aside.
          Allowing Crl Appeal No. 2117/2009 and dismissing Crl
   Appeal Nos. 2118-2119/2009, the Court.
H         HELD: 1.1 The statements of PWl and PW65 arc not
                                    936
  SHEIKH SINTHA MADHAR @ JAFFER @ SINTHA ETC. v.                        937
            STATE REP. BY INSP. OF POLICE

contradictory to each other, rather they are complementary to ·A
each other. Merely because PW65 did not see PWl until the
accused had left, does not mean that she was not present at the
place of occurrence and she did not witness the occurrence. She
already stated that she was afraid of her own life and so she was
hiding to some extent, and thus, PW65 might not have seen her. _B
PW65 made a call to the police but did not mention PW! 's
presence to the police at that time. This fact is quite natural as in
the commotion, he had made a police call only to inform the police
about the incident and could not provide details for the same.
[Para 12] [943-B-C]
                                                                         c
       1.2 The fact that PWl was not named in the inquest report
is of no consequence as the inquest report relates to the cause of
death and not the witnesses' account of the incident. The first
informant though had not named PWl in the complaint such
omission is not fatal in the face of otherwise cogent and convincing
                                                                         D
evidence of PWl, corroborated by PW65. The other eyewitnesses
turned hostile during the trial and did not support the prosecution
case at all, but that does not affect the statements of PWl and
PW65. PWl 's statement cannot be rejected only on the ground
that she is an interested witness as sheo has been particularly
corroborated by PW65's testimony. [Para 13] (943-D-E]                    E

      1.3 PWl could have seen the assailants at night because
the area was illuminated by the electric lights all around and there
was sufficient light to sec them. Also, the fact that she was sitting
in an air-conditioned room was not couclusively proved and it is
                                                                         F
quite natural that at 10 p.m. in the night, when the roads and
neighbourhood are quiet, and there is no hustle-bustle like
daytime, even a slight noise can be heard. Thus, the screams of
the deceased could have been easily heard and identified by his
daughter and there was nothing unusual for her to come out and
witness the incident, as she was by then already expecting the           G
return of her father from the clinic. The post-mortem report states
that most of the wounds are deep cut wounds but the. same can
 be caused by a knife. To this extent, the statement of PWl is
corroborated by the medical examination. [Para 14, 15] [943-G-
H; 944-A, C-D)                                                           H
938           SUPREME COURT REPORTS                     [2016] 2 S.C.R.


A        1.4 It is clear from the evidence that there is no inordinate
   delay in conducting the TIP. As and when the accused were
   arrested, within reasonable time they were produced for the TIP.
   Also, there is no invariable rule that two accused persons cannot
   be made part of the same TIP. Joint TIP would thus, in no manner,
 B affect the validity of the TIP. The purpose of a TIP is to ensure
   that the investigation is going on the right track and it is merely
   a corroborative evidence. The actual identification must be done
   in the court and that is the substantive evidence. If the accused
   is already known to the witness, the TIP does not hold much
 C value and it is the identification in the court which is of utmost
   importance. PWl identified all the seven accused appellants in
   the court as well as in the TIP. [Para 16] (944-E-F]
            1.5 The fact that the deceased had a few strands of hair in
      his hand which did not match with any of the accused except Al3,
 0    who had been acquitted by the Trial Court as well as the High
      Court, does not hold much ground as it, by itself cannot exonerate
      the accused only because the samples do not match. [Para 17]
      [944-G-H]
            1.6 A conspiracy is always hatched in secrecy and it is very
      difficult to gather direct evidence for the proof of the same. The
 E
      conspiracy before the incident is proved by the statements of
      PW23, PW36 and PW37. Thus, the conspiracy was proved beyond
      reasonable doubt between Al to A6 and the courts below were
      correct in convicting them for the offence of conspiracy. Also,
      the murder of the doctor was proved by the aid of the eye-
 F    witnesses. The conviction of Al 'to A6 is based on proper
      appreciation of evidence and requires no interference. [Paras 20-
      21] [945-G-H; 946-A-B]
            1. 7 PWl though identified A7 as well in the court, but she
      did not state that he was the one standing unarmed, as is the
 G    case of the prosecution. A7 was already ac11uitted of the charges
      of conspiracy with the second group i.e. AS to Al3. Thus, he
      cannot be linked at all with the common object of Al to A6 who
      had hatched a separate conspiracy. Also, PW65 did not identify
      A7 or any other accused in the court. [Para 22] [946-D-E)
 H          1.8 AS to Al3 had been acquitted of the charge for the
  SHEIKH SINTHA MADHAR@ JAFFER @ SINTHA ETC. v.                             939
            STATE REP. BY INSP. OF POLICE

offences under Section 109 read with Section 302 IPC and the                 A
same reason would apply for the acquittal of A7 as well, as this
charge relates to the second group. A7 had been charged for the
offence u/s. 109 read with Section 302 along with AS to A13 on
the basis of the conspiracy hatched but when AS .to A13 have
been acquitted, A 7 must also be acquitted as the abetment is
                                                                             B
with reference to the conspiracy. Also, when the offence of Section
147 IPC is not proved beyond reasonab.le doubt, A7's.presence
becomes doubtful and as such he cannot be made liable for
abetment to commit murder by Al to A6. Thus, the conviction of
A7 is set aside. [Paras 23, 24] (946-F-H]
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
                                                                             c
Nos. 2118-2119 of2009.
                                 WITH
      Crl. A. No. 2117 of2009
      From the Judgment and Order dated 22.02.2008 of the Madurai            D
Bench of Madras High Court in Criminal Appeal Nos. 1736 of2003 and
1807 of2003.
      Sidharth Luthra, Ratnakar Das, M. Karpaga Vinayagam, Sr. Advs.,
Anis Mohd., Ms. Shardha Karol; Joel, L. K. Pandey, Ms. K. V. Bharathi
Upadhyaya, S. I. Abdul Kalam, Mrs. V. S. Lakshmi, Ganesh D. Gurnule,         E
A. Venayagam Balan, Mehboob, Advs. for the Appellants.
      Subramonium Prasad, Sr. Adv., M. Yogesh Kanna:, Jayant Patel,
Utkarsh Srivastava, Ashmeet Singh, Advs. for the Respondents.
      The Judgment of the Court was delivered by
       PINAKI CHANDRA GHOSE, J. I. These appeals, by special                 F
leave, have been directed against the judgment and order. dated
22.02.2008 passed by the Madras High .Court, Madurai Bench, in Criminal
Appeal No.1736 of2003 and Criminal Appeal No.1807 of2003, whereby
the High Court dismissed the criminal appeals filed by the appellants and
con finned their conviction and sentences for various offences punishable    G
under Sections 148, 302, 201and120B of the Indian Penal Code, 1860
(hereinafter referred to as "!PC").
       2. The brief facts necessary to dispose of these appeals are that
after the Coimbatore serial blasts, a conspiracy was hatched to do away
with Dr. Sridhar (deceased), who was BJP Town Secretary at Trichy,           H
940            SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A     and also actively involved in the propagation of the Hindu religion in the
      town. There were a total of 13 accused that hatched conspiracies in two
      separate groups to kill Dr. Sridhar and curb the growth of BJP in the
      city. A I to A6 formed one group and hatched a conspiracy under the
      leadership of A I. The second group was formed under the guidance of
      A8 and included A7 to Al3 who conspired at Tirunelveli. Both these
 B
      groups had planned to kill the deceased in two separate conspiracies at
      two different places. In pursuance of the conspiracy, Al to A7 formed
      an unlawful assembly on 2.2.1999 and attacked the deceased at about
      I 0 p.m. when he was returning back from his clinic. A I to A6 attacked
      the deceased with weapons in pursuance of the common object and
 c    caused his death and A 7 stood nearby unarmed. As claimed by the
      prosecution, this incident was witnessed by the daughter of the deceased
      (Lakshmi Priya-PW I), neighbours of the deceased (Domnic Raja-PW2,
      Sagayarajan-PW3 and Dr. Soundirarajan-PW65) and the night-watchman
      in the area (Mr. Marimuthu-PW5).

 D           3. After investigation, Police filed charge-sheet against all the 13
      accused persons. Upon considering the material on record and hearing
      the counsel on both sides, the accused persons were charged for various
      offences punishable under Sections 148, 302, 201and120-B of the IPC.
      The charges were read over and explained to them. All the accused
      persons_ pleaded 'not guilty' and claimed for trial.
 E
            4. The Trial Court by its judgment and order dated 7.10.2003,
      convicted and sentenced the accused/appellants for the offences as
      follows: A I to A6 for the offences punishable under Sections 120-B
      read with Section 302, Section 148 and Section 302 IPC. A3 and A6
 F    were acquitted of the offences punishable under Section 20 I read with
      Section 302 IPC. A 7 was convicted for the offence punishable under
      Section 147 and Section 109 read with Section 302 IPC. However, he
      was acquitted of the charges under Section 120-B read with 302 and
      Section 20 I read with Section 302 IPC. AS to A 13 were acquitted of all
 G    the charges framed against them.
            5. The matter came up before the Madras High Court (Madurai
      Bench) vide Criminal Appeal No.1736 of2003 filed by AS and Criminal
      Appeal No.1807 of2003 filed by Al,A2, A3, A4,A6 andA7. No appeal
      was filed by the State against the acquittal of A8 to Al3. The High
 H    Court by the impugned judgment and order dismissed both the appeals
SHEIKH SINTHA MADHAR@JAFFER@ SIN TH A ETC. v. STATE REP. BY                  941
          JNSP. OF POLICE [PINAKI CHANDRAGHOSE, J.]


on the ground that the prosecution had established beyond reasonable          A
doubt that Al to A6 had conspired to kill Dr. Sridhar and A7 was a part
of the unlawful assembly and participated in the murder of Dr. Sridhar
(deceased). Since the conspiracy and murder were proved, the High
Court refused to interfere with the judgment of the Trial Court.
      6. Aggrieved by the judgment and order dated 22.02.2008 passed          B
by the Madras High Court, the accused have filed the appeals before
this Court against their conviction and sentence. Criminal Appeal
Nos.2118-2119 of2009 is filed by A1to A6 and Criminal Appeal No.2117
of2009 is filed by A7. We shall first discuss the culpability of A I to A6
and subsequently deal with the conviction and sentence of A7.                 c
       7. Mr. Sidharth Luthra and Mr. Ratnakar Das, learned senior
counsel appearing on behalf of appellants A I to A6 have inter alia
reiterated that the judgments of the Trial Court as well as the High Court
were erroneous as the prosecution had been unable to bring home its
case. He assailed the reasoning given by the High Court in arriving at a      D
wrong conclusion i.e. the guilt of the accused on the following grounds:
Firstly, the presence of PW! (daughter of the deceased) was doubtful at
the spot as it was not reflected in the earliest available records and her
testimony cannot be the sole basis of conviction as it was unreliable.
Secondly, the number of assailants was not clear. Thirdly, due to the         E
distance of the place of occurrence and insufficient light thereat, the
identity of the accused was rendered doubtful and the weapon of the
murder was also not clearly established, being contrary to what was
stated in the post-mortem report. Fourthly, the Test Identification Parade
was vitiated in law and delayed as well. Fifthly, the conspiracy was not      F
proved. Lastly, the investigation was defective and biased and various
material documents were suppressed and the forensic evidence was
also not reliable.
       8. Mr. Subramonium Prasad, learned senior counsel appearing
for the State has vehemently rebutted the grounds argued by the learned       G
senior counsel appearing for the appellants and has stated that the motive
and conspiracy behind the incident and the involvement of the appellants
was proved, beyond reasonable doubt, by the testimony of PW- I as
corroborated by PW-65's evidence in partie'illar. The ·post-incident
conspiracy was also proved and there were no suCJH~rdgularity in the          H
942            SUPREME COURT REPORTS                           [2016] 2 S.C.R.



A     Test Identification Parades which would vitiate the case of the
      prosecution.
             9. Mr. M. KarpagaVinayagam, learned senior counsel appearing
      on behalf of A 7, submitted that the offence under Section 147 !PC was
      not made out against A 7 as the evidence of PW-I, even when corroborated
 B    by the evidence of PW-65, could not establish the identity and presence
      ofA 7 at the place of the incident. He also argued that since A 7 had been
      acquitted of the conspiracy with A8toA13, his conviction under Section
      I 09 read with Section 302 !PC, could not be sustained.
             I 0. The main issues are whether the conspiracy was proved or
 c    not and whether the presence of the accused at the place of incident
      was established or not. We shall deal with AI toA6 first and subsequently
      with A 7. We have perused the oral and documentary evidence on record.
      We shall now examine each and every contention in light of the arguments
      adduced before us.
 D
           I I . The first aspect for consideration before us is the testimony of
   the eye-witnesses. There were allegedly 5 eye-witnesses to the murder
   who were examined: the daughter of the deceased (Laks;1mi Priya-
   PW I), neighbours of the deceased (namely, Domnic Raja-PW2,
   Sagayarajan-PW3 and Dr. Soundirarajan-PW65) and the night-watchman
 E
   in the area (Mr. Marimuthu-PWS). PW I stated that she was studying in
   her house when sh.e heard a scream- "Save me". Realizing that it was
   of her father, she went out of the gate and saw 6-7 persons stabbing her
   father with knife-like weapons. She was standing at about a l 00 feet
   distance from the place of incident and though it was around 10 p.m. but
 F still she could clearly see the incident as it took place at a spot which
   was then lit up by the tube lights of PW65's house. Apart from the lights
   of PW65's house, the street lights as well as her own compound lights
   were on. She shouted at the accused persons to stop, but they only
   turned and saw her and thus she could see them clearly. After the incident,
 G she saw them going away on their bikes and they also took her father's
   bike. She immediately went to the house of the deceased's elder brother
   Shanmugasundaram (informant), who came along with her and saw the
   deceased lying in a pool ofblood. The elder brother could not be examined
   as he died before the trial could commence. PW! also identified all the
   seven accused appellants in the Test Identification Parade.· PW65, on
 H
SHEIKH SINTHAMADHAR@JAFFER@SINTHA ETC. v. STATE REP. BY                          943
          INSP. OF POLICE (PINAKI CHANDRAGHOSE, J.]


the other hand, stated ti ..<t he heard the distress cal I of the deceased and    A
came outside and saw 4-5 persons attacking the deceased, but he only
saw PW I when she came near the dead body of her father after the
assailants had left.
       12. When we analyse the statements of PW! and PW65, they
are not contradictory to each other, rather they are complementary to             B
each .other. Merely.because PW65 did not see PW! until the accu·sed
had left, does not mean that she was not present at the place of occurrence
and she did not witness the occurrence. She has already stated that she
was afraid of her own life and so she was hiding to some extent, and
thus, PW65 might not have seen her. PW65 made a call to the police but
did not mention PW! 's presence to the police at that time. This fact is          c
quite natural as in the commotion, he had made a police call only td
infonri the police about the incident and could not provide details for the
same.
       13. The fact that PW I was not named in the inquest report is of
no consequence as the inquest report relates to the cause of death and            D
not the witnesses' account of the incident. The first informant though
had not named PW! in the complaint such omission is not fatal in the
face of otherwise cogent and convincing evidence of PW!, corroborated
by PW65. The other three eyewitnesses: PW2, PW3 and PW5 turned
hostile during the trial and did not support the prosecution case at all, but     E
that does not affect the statements of PW I and PW65. PW I's statement
cannot be rejected only on the ground that she is an interested witness
as she has been particularly corroborated by PW65 's testimony.
         14. The next aspect for our consideration is the distance and
 brightness of the place of incident from where PW I witnessed it and F
 whether it was possible for her to see the assailants at night from a
 distance of about I 00 feet. This aspect has been dealt with by the High
 Court in great details and we agree with the High Court that PW! could
 have seen the assailants at night because the area was illuminated by ·
 the electric lights all around and there was sufficient light to see them. G
 Also, the fact that she was sitting in an air-conditioned room was not
 conclusively proved and it is quite natural that at I 0 p.m. in the night,
  when the roads and neighbourhood are quiet, and there is no hustle-
. bustle like daytime, even a slight noise can be heard. Thus, the screams
  of the deceased' could have been easily heard and identified by his
                                                                            H
944             SUPREME COURT REPORTS                           [2016] 2 S.C.R.


A     daughter and there was nothing unusual for her to come out and witness
      the incident, as she was by then already expecting the return of her
      father from the clinic.
              15. The next question is regarding the weapon of murder not
      conforming to the post-mortem report opinion. The post-mortem was
 B    done by PW40 - Dr. Vijayalakshmi who stated that many of the injuries
      found on the deceased were all cut injuries and could have been caused
      by cutting weapons, like an Aruval and not by kn iv es as stated by PW I
      in her testimony. A knife is essentially used for stabbing but it can also be
      used for slicing and cutting depending upon the manner and angle at
 c    which it is used. PWI had stated that she saw the accused attacking the
      deceased and it cannot be technically taken to be stabbing or slicing.
      The post-mortem report states that most of the wounds are deep cut
      wounds but the same can be caused by a knife. To this extent, the
      statement of PW I is corroborated by the medical examination.

 D           16. The next question is whether the Test Identification Parades
      were vitiated on account of delay or for holding those T!Psjointly, oron
      account of the identity of the accused having been already revealed
      before the TIP could be conducted. It is clear from the evidence that
      there is no inordinate delay in conducting the TIP. As and when the
 E    accused were arrested, within reasonable time they were produced for
      the TIP. Also, there is no invariable rule that two accused persons cannot
      be made part of the same TIP. Joint TIP would thus, in no manner,
      affect the validity of the TIP. The purpose of a TIP is to ensure that the
      investigation is going on the right track and it is merely a corroborative
      evidence. The actual identification must be done in the Court and that is
 F
      the substantive evidence. If the accused is already known to the witness,
      the TIP does not hold much value and it is the identification in the Court
      which is of utmost importance. PW! identified all the seven accused
      appellants in the Court as well as in the TIP.

 G          17. The fact that the deceased had a few strands of hair in his
      hand which did not match with any of the accused except A 13, who was
      already acquitted by the Trial Court as well as the High Court, does not
      hold much ground as it, by itself cannot exonerate the accused only
      because the samples do not match.
 H           18. The most important question is whether the conspiracy hatched
 SHEIKH SINTHA MADHAR@JAFFER@SINTHA ETC. v. STATE REP. BY 945
           INSP. OF POLICE [PJNAKI CHANDRAGHOSE, J.]

 by A I to A6 was proved or not. A conspiracy is always hatched in              A
 secrecy and it is very difficult to gather direct evidence for the proof of
 the same. The conspiracy before the incident is proved by the statements
 of PW23, PW36 and PW37. PW23 was a coolie (daily-wage worker)
 who had overheard indistinct conversations between 6-7 persons in the
 first week of January, 1999, when they had come to take bath at the            B
 Mukkombu Dam. But this witness's testimony cannot be directly used
 to implicate the accused as he did not remember their faces and refused
 to identify them in Court because of fear. The same is the case with
 PW24 who was a caretaker at the garden near Mukkombu Dam who
 also could not identify the accused in the Court.                              c
         19. An important witness of the conspiracy is Sayeed Ibrahim
  (PW36), a purse manufacturer, who stated that he knew A I to A6. He
  was a member of the Al-Umma movement which was a banned
  organiZation and his job was to collect money for the undercover or
· arrested members of the organization. In July 1998, A4 told him to go to      D
  Mukkombu to meet Al, A2, A3,A5 and A6 and collect money for some
  of the convicts in the Coimbatore Blast Case. He then went to Madurai
  and he heard the discussion between A I, A2 and A4 that Dr. Sridhar
  must be killed in Trichy to stop the growth of the BJP party. Around
  20. 1.1999, he along with Al toA6, went to Mukkombu and was told that         E
  the decision to kill Dr. Sridharwas finalized. This is corroborated to this
  extent by the statements of PW23 and PW24 who stated their presence
  at Mukkombu around that time. Also, after the incident, he saw A3, A4,
  AS and A6 in Madurai, where A4 described how they murdered Dr.
  Sridhar and that A3 hurt his left hand middle finger during the attack.
                                                                                F
  This statement by PW36, who turned an approver, substantiates the
  allegation of conspiracy to murder Dr. Sridhar.
         20. PW37 (John Basha) also testified that on the date of inCident
. at around 8:30 p.m.,A3 called him up and told him that they have planned
  to murder Dr. Sridhar and after that one person will come to stay with        G
  him and he should permit him to do so. After the incident, A3 came to
  PW37 with A'I who had a blood-stained shirt in his hand and they were
  accompanied by AS. He also saw A3 washing six blood-stained knives
  and a wound on his left hand middle finger. The injury on the middle
  finger ofA3 was seen by both PW36 and PW3 7 and they were supported
                                                                                H
946              SUPREME COURT REPORTS                         [2016] 2 S.C.R.


A       by PW! 7 (the doctor who dressed up the wound on A3's finger). Though
        he maintained no records of patients, but he stated that he stitched the
        wound of A3.
           21. Thus, the conspiracy was proved beyond reasonable doubt
     between A I to A6 and the Courts below were correct in convicting
 B · them for the offence of conspiracy. Also, the murder of Dr. Sridhar was
     proved by the aid of the eye-witnesses. The conviction of A I to A6 is
     based on proper appreciation of evidence and requires no interference.
            22. Now, we shall discuss the culpability of A 7 under Sections
    147 and I 09 read with 302 !PC, though he was acquitted of the charges
 c of conspiracy with AS to A 13. The prosecution alleged that A7 was
    standing unarmed when A I to A6 were attacking the deceased and
    therefore he was charged with Section 147 !PC and not with Section
    I 4S IPC. PW! has stated in hertestimonytliat 6-7 persons were attacking
    her father. She did not state anything about any particular person standing
 D unarmed or any role played by such person in the incident. Though she
    identified A7 as well in the Court, but she did not state that he was the
    one standing unarmed, as is the case of the prosecution. A 7 was already
    acquitted ,of the charges of conspiracy with the second group i.e. AS to
     A 13. l:-le thus cannot be linked at all with the common object of Al toA6
  E who had hatched a separate conspiracy. Also, PW65 did not identify A 7
     or any other accused in the Court.
                23. Regarding the conviction of A 7 for the offences under Section
         I 09 read with Section 302 !PC, it has to be considered that AS to A 13
         had been acquitted of this charge and the same reason shall apply for
  F      the acquittal of A7 as well, as this charge relates to the second group.
         A7 had been charged for the offence under Section I 09 read with Section
         302 !PC along with A8 toA13 on the basis of the conspiracy hatched at
         Tirunelveli, but when AS to A 13 have been acquitted, A 7 must also be
         acquitted as the abetment is with reference to the conspiracy.
  G             24.Also, when the offence of Section 147 !PC is not proved beyond
         reasonable doubt, A Ts presence becomes doubtful and if that is the
         case, he cannot be made liable for abetment to commit murder by A I to
         A6. The conviction of A7 is, therefore, set aside and he is acquitted of
         all the charges and is directed to be set at liberty.
    H
SHEIKH SINTHA MADHAR@JAFFER@SINTHA ETC. v. STATE REP. BY 947
          INSP. OF POLICE [PINAKI CHANDRAGHOSE, J.]

       25. Jn the light of the above discussion, we find no ground to .A
interfere with the judgment passed by the High Court so far as it has
confirmed the conviction and sentence of A I to A6. Criminal Appeal
Nos.2118-2119 of 2009 are, accordingly, dismissed. However, the
judgment of the High Court so far.as it concerns the c_onviction of A7, is
set aside. Criminal Appeal No.2117 of2009 is, accordingly, allowed. A7 B
is already released on bail granted by this Court on 4'' July, 2011. His bail
bond shall stand discharged.
Nidhi Jain                                           Appeals disposed of.