Is a suggestion put in cross-examination whose answer incriminates the accused a substantive piece of evidence?

(Judgment of the Court was made by N.SATHISH KUMAR, J.) Challenging the judgment of conviction and sentence, dated 11.03.2021 in S.C.No.164 of 2010 by the IV Additional District and Sessions Court, Bhavani, A-1 and A-2 have filed these criminal appeals. By the abovesaid judgment, A-1 and A-2 were convicted and sentenced to undergo imprisonment as stated below: Conviction Sentence A-1 - Section 302 of IPC To undergo life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo six months rigorous imprisonment. A-2 - Section 302 r/w 109 IPC to undergo life imprisonment and to pay a fine of Rs.10,000/-, in default to undergo six months rigorous imprisonment.

The brief facts of the prosecution case is as follows: 2.1.The deceased was running a medical shop in the name of Kamatchi Medicals in Bhavani main road. P.W.1 is the wife of the deceased. A-1, A-2 and one Rajagopal were friends. A-3 is the wife of Rajagopal. A4 is the friend of A-3. A-3 had illicit relationship with A-1 which was objected by the husband of A-3. Thereafter, A-1 has arranged a beauty parlour shop for A-3. While the thing stood thus, one Senthilkumar, who was running a medical shop, called A-3 for illegal relationship. When A-3 tried to inform the act of Senthilkumar to A-1, 4th accused objected her as the said Senthilkumar is the friend of A-4 and instead of divulging the name of Senthilkumar, the name of one Shanmugam, owner of Kamatchi Medicals could have been pointed out to A-1. It is in these circumstances, on the date of occurrence, while the deceased Shanmugam, after closing the shop at around 09.30 p.m., was returning to his house. P.W.3, who was residing in nearby place, saw two persons coming in a bike in a high speed and turning towards the direction of Erode and he saw the pillion rider removing his shirt and at that time, he had also heard a noise of the deceased Shanmugam. Immediately, he saw the deceased with acid injuries. When he tried to hold the deceased, P.W.3 also suffered some burn injuries due to acid. P.W.3 also informed P.W.2 about the incident. P.W.2, who was working in the medical shop, rushed to the spot and found burn injuries on the deceased. P.W.3 had also informed P.W.1, the wife of the deceased and she has also rushed to the spot. Before she reaches the spot, the face and mouth of the deceased were completely burnt and the deceased was only showing signs and immediately he was taken to Loganathan hospital and as they could not do anything, the deceased was taken to the Government hospital in Erode and from there, he was referred to the Coimbatore Government hospital, where he succumbed to injuries. When the deceased was in Erode Government Hospital, the deceased informed P.W.1 by writing a word ‘Apollo’ in a paper. Since Apollo medical shop is also situate in that place, P.W.1 was under an impression that the people in the Apollo medical shop could have done something to her husband. Thereafter, P.W.1 lodged a complaint Ex.P1 to the police. 2.2.P.W.5, on 14.06.2009, while coming near the place of occurrence between 9.00 p.m. and 10.00 p.m., he saw two people coming in a bike and threw the acid on the deceased and immediately, P.W.3 caught hold the deceased. The deceased was taken to the hospital. According to P.W.5, he had seen seen both the accused in the bike at the relevant point of time. After 8 to 9 days, he has seen both the accused in Bhavani police station. Thereafter, he identified them in the court only. 2.3.On 14.06.2009 at about 09.30 p.m., P.W.6 has seen both A-1 and A-2 in front of Palanisamy Tea Shop. At that time, the deceased after closing the shop was returning to his home. After some time, both the accused left the place in the two wheeler and within 2 to 3 minutes, he heard the noise and at that time, the deceased suffered acid burn injuries. P.W.3 also suffered injuries since he has touched the deceased. They all took the deceased first to Loganathan hospital and from there, to the Erode Government Hospital and later, he was referred to the Coimbatore Medical College hospital. 2.4.When P.W.13, medical officer attached to Revathi hospital, was in hospital on 14.06.2009, at about 10.15 p.m., A-2 came to the hospital and stated that some people threw Acid on him. He has seen acid burn injuries on his left side elbow and neck, left cheek and after the first aid, A-2 left the hospital by saying that he would take treatment in some other hospital. 2.5.P.W.18 took up the investigation on the basis of Ex.P.12, FIR registered by the Sub Inspector of Police in Crime No.465 of 2009 and he went to the place of occurrence and prepared Ex.P.13 observation mahazar and had drawn rough sketch Ex.P.14 in the presence of P.W.7 and one Suresh. He also collected the remains of the acid and other material objects from that place under a cover of mahazar. He examined the witnesses and recorded their statements. Thereafter, he went to the Coimbatore Government hospital and conducted inquest over the dead body of the deceased and prepared inquest report Ex.P.15. He had also recovered dresses after the postmortem and sent them to the court. He then recorded the statement of the witnesses. Later he took the custody of A-1, who surrendered before the court and examined him. In the meanwhile, on 22.06.2009, when P.W.8 VAO was in his office at about 05.00 p.m., A-2 appeared before him and confessed the crime that he had thrown acid along with A-1 on the deceased on 14.06.2009. His confession and the special report is Ex.P.7. P.W.18 arrested A-2 and recorded his confession. The admissible portion of the confession of A-2 is Ex.P.16. The investigating officer has seized the motor cycle, blue colour jeans pant and a shirt with acid holes from A-2 in the presence of P.W.8 and other witnesses. 2.6.P.W.19, the medical officer attached to the Government Hospital, Erode has admitted the deceased at 11.20 p.m. on 14.06.2009 and she was informed that two unknown persons threw acid on the deceased. After giving first aid, the deceased was referred to the Coimbatore Medical college hospital, in respect of which Ex.P.21 was filed. P.W.21, who was also having a medical shop, on hearing the news about the incident, also went to the hospital and has seen the deceased with acid burn injuries. P.W.22 in whose presence the observation mahazar was prepared and remnants of the acid from the floor, namely material objects were also seized under Ex.P.17 mahazar in his presence. P.W.23 who was also running a medical shop, also went to the hospital and saw the deceased writing the name of Apollo, as he could not speak anything other than that. P.W.24 working in the Apollo medical shop was also examined. P.W.26, who is also running a tea shop, has also seen the deceased suffering injuries at the relevant point of time and the deceased was taken to the hospital. P.W.28, who was working in the Apollo Medical shop, was also examined by the police and later, they were let off since the accused surrendered. P.W.29, who was the Manager of Apollo Pharmacy, Salem, was also examined by the police in this regard. 2.7.P.W.32 is the owner of one Sri Vel Tex Company dealing with Acids. He has stated that on 13th June, accused no.1 requested him over phone, the acid for cleaning toilet and P.W.32 informed him that he can collect it from the manager Veeramani and later his manager told him that he has supplied the acid in a plastic can to A-1. P.W.35 is the wife of A-1 and A-1 informed her that he is going to surrender in the court and on 17.06.2009, he went to the court and surrendered. 2.8.P.W.14 medical officer attached to the Bhavani Government hospital, when he was on duty on 24.06.2009, A-1 was brought for treatment through the head constable. On examination, he found irregular margin injuries formed with septicemia in his right elbow. Similarly, he has also noted injuries on the face and body of A-1, in respect of which Ex.P.8 was issued. P.W.16, the head clerk, as per the orders of the court, has sent the material objects to the forensic science department under Ex.P.9 requisition, for examination. 2.9.P.W.17, the medical officer, attached to the Coimbatore Government medical college hospital, conducted autopsy over the dead body of the deceased and found the following injuries: ‘Excoriation of skin noted (n.c) entire face sparing patchy areas of fore head, neck in its front, both side with tailing backwards, front of chest and upper abdomen upto 4 cm below to umbilicus with tailing down wards and back of patchy areas of back of both forearms. The base of the wounds are grayish in colour and leathery in nature. singeing of hairs in the injured areas noted. Both eye balls found grayish in colour and dried. Oral cavity mucosa and tongue found grayish in colour and leathery in nature. On dissection of neck, chest and abdomen: Upper part of food pipe mucosa found corroded and dark grayish in colour. The larynx found odematous, on cut section the mucosa found corroded and dark grayish in colour.’ He has issued Ex.P.10, postmortem certificate and gave the final opinion that the deceased would appear to have died of Sulphuric acid poisoning and its complications. P.W.12 Doctor of Bhavani Government hospital has examined A-2 on 23.06.2009 and found the injuries aged about 9 to 10 days on the face, forehead, chin and also in the right neck. 2.10.P.W.20 took up the further investigation as P.W.18, Inspector who has conducted preliminary investigation went on transfer. P.W.20 continued his investigation and recorded the statements of witnesses. After collecting the forensic report, namely Ex.P.22 and P.23 and after completing the investigation, he filed the final report against four accused under sections 302, 302 read with 120(B) and 302 read with 109 IPC.

After the filing of the final report by the investigating officer, on appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Sessions in S.C.No.164 of 2010 for trial.

The accused were charged as follows: Accused Charges A-1 to A-4 Section 120(B) A-1 Section 302 IPC A-2 Section 302 r/w 109 IPC A-3 and A-4 Section 302 r/w 120(B) IPC To prove the charges, the prosecution has examined as many as 42 witnesses, namely P.W.1 to P.W.42 and marked 23 documents, namely Ex.P.1 to Ex.P.23 and 10 material objects were marked as M.O.1 to M.O.10. Further, two court side exhibits were marked as Ex.C.1 and Ex.C.2.

On completion of the evidence on the side of the prosecution, the accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found against them in the evidence adduced by the prosecution witnesses. They denied all the incriminating circumstances as false. On the side of the defence, no evidence was recorded and no documents were marked.

The trial Court, after appreciating the oral and documentary evidence and materials on record, by judgment dated 11.03.2021, found A-1 and A-2 guilty of the offences and they were convicted and sentenced, as stated above and the trial court has acquitted A-3 and A-4 of the charges levelled against them. Challenging the conviction and sentence imposed on A-1 and A-2, they have preferred two separate criminal appeal.

The learned counsel for the appellants have contended that the motive as alleged by the prosecution is illogical and the same was not established. According to the learned counsel, A-1 and A-3 had illicit connection. One Senthilkumar, who is the friend of A-4 and running a medical shop, called A-3 for illicit relationship and when A-3 tried to inform the act of the said Senthilkumar to the first accused, the 4th accused objected and stated that since Senthilkumar is the friend of 4th accused, instead of divulging the name of said Senthilkumar to the first accused, they decided to give the name of the deceased, the owner of Kamatchi medical shop to avoid misunderstanding. Accordingly, A-3 also informed A-1 about the deceased. Therefore, A-1 decided to eliminate the deceased, but this motive has not been established.

It is the further contention of the learned counsel for the appellants that the prosecution relied on the evidence of P.W.1 to show as if the deceased has pointed out by writing the word ‘Apollo’, as he could not speak, but the said writing has not been seized or recovered by the police. Further, all other eyewitnesses have not seen the accused persons and no eyewitnesses were available. P.W.5 though said to have seen the accused, but no test identification parade was conducted and therefore, his evidence is highly doubtful. That apart, A-1 and A-2 allegedly went to the hospital and got treated for the acid injuries but the same were not substantiated and no wound certificate was filed. Though P.W.13, medical officer is said to have treated A-2 on 14.06.2009 for the alleged acid injury, no wound certificate has been filed. Therefore, the evidence of P.W.13 is highly doubtful. Further, P.W.12 and P.W.14 medical officers found injuries of 10 days old on both the accused when they were produced by the police. Their evidence did not point out that it is only the acid injury. Therefore, the charge against the accused for throwing the acid cannot be held to be proved.

The learned counsel for the appellants further contended that the alleged extra judicial confession given to P.W.8 VAO by A-2 also cannot be given much importance since the accused person is stranger to P.W.8 and therefore, the possibility of A-2 giving confession of the incident is highly doubtful. Further, A-1 admittedly surrendered before the court. The alleged seizure from the accused persons alone will not prove the guilt of the accused. Further, as long as the test identification parade was not conducted, the identity of the accused has not been established. Hence, the trial court finding the accused guilty is not based on proper appreciation of evidence and therefore, the accused /appellants are entitled for acquittal.

The learned Additional Public Prosecutor would submit that though the motive has not been established, the fact remains is that the accused nos.1 and 2 coming in the motor cycle, one of them was carrying a helmet and also throwing of the acid, was spoken to by P.W.5. P.W.5 who is a rustic villager, has clearly identified the accused. P.Ws.1,3 and 6 also rushed to the spot immediately. The evidence of P.Ws.5 and 6 clearly establish the presence of the accused in the place of occurrence and later, they have fled away in the motor cycle. P.W.13 Doctor in a private hospital has seen one of the accused, namely A-2 on the same day and he has treated him as he has also suffered acid injury and in fact, A-2 informed P.W.13 that somebody has thrown acid on him. After the first aid, he has left the hospital stating that he will take treatment in some other hospital. P.Ws.12 and 14, Doctors of Bhavani Government hospital have also seen both the accused when they were produced by the police for treatment and that the accused have not explained as to how the acid injury has happened. Whereas the very suggestion by the accused clearly indicates that they suffered acid injury at the relevant point of time. This fact coupled with the seizure of all material objects from the accused and the detection of Sulphuric acid during the forensic science examination, clearly points out the complicity of the accused with the crime. Merely because the test identification parade was not conducted, cannot be a ground to reject the entire prosecution version. The trial court has rightly convicted the accused and it does not warrant any interference.

We have considered the submissions made by both sides and perused the entire materials available on record. Though the prosecution has examined as many as 42 witnesses, none of the witnesses have spoken about the motive and that the motive and the alleged charge of conspiracy theory have not been established by the prosecution as rightly held by the trial court. But, the fact remains is that the deceased while returning from the medical shop after closing the shop at around 09.30 p.m., suffered serious acid burn injury. P.W.1, the wife of the deceased, rushed to the spot immediately on hearing the same from P.W.3. P.W.3 who is the neighbour has seen two people coming in a motor cycle and he immediately heard the cry of a deceased. On hearing the sound of the deceased, he immediately went there and touched the deceased, as a result of which he had also suffered acid burns. He immediately took bath in the nearby waterpipe. Therefore, it is the evidence of P.W.1 that he saw both the people coming in a motor cycle in high speed and throwing acid on the deceased. At that time, the severity of the acid is so much that the deceased could not speak anything and immediately, all of them took the deceased to the hospital. P.W.1 also rushed to the hospital and when the deceased was enquired, he could not speak, but he has written a word 'Apollo' and the same was also reflected in the FIR. Later, based on the statement of P.W.1, the investigation was originally proceeded against the persons who were working in the Apollo Medical shop and they were examined and subjected to police investigation on many occasions. P.W.24, P.W.27, P.W.28 and P.W.29, who were working in the Apollo medical shop were subjected to police investigation based on the earlier version and later, they were all left. But the fact remains is that P.W.3 heard the noise of the deceased and he saw two people coming in a motor bike. The evidence of P.W.3 clearly shows that the two people came in a bike, threw the acid and he also first touched the deceased and later informed P.W.1 and all others came and took the deceased to the hospital.

Further, P.W.5, at the relevant point of time on 14.06.2009 at around 09.00 pm to 10.00 p.m., while coming in a two wheeler [TVS 50] in the opposite direction, saw the deceased coming and he had also seen two persons coming in a bike and that the pillion rider was having a can in his hand and they have thrown something like water on the deceased and immediately, he heard the sound from the deceased and at that time, he saw P.W.3 also came there and found the deceased received burn injuries due to acid attack. The evidence of P.W.5, when carefully looked into, it is seen that though in the chief examination, he has not identified the accused, in the cross examination, it is seen that he has clearly identified both the accused. He has clearly stated that he has seen the accused only for the first time since they came in the bike at the relevant point of time and he saw their face in the light and the person riding the bike was carrying helmet in his lap. Thereafter, 8 to 9 days later, he had identified both the accused in the police station. Thereafter, for the first time, he had identified them in the court. It is relevant to note that the evidence of P.W.5 clearly shows that his shirt also got damaged in the acid when he touched the deceased. His entire evidence when carefully seen, it is clear that there is no motive whatsoever for P.W.5 to implicate the accused. P.W.5 is a rustic villager. His evidence is clear that he has seen the accused coming in the opposite direction and suddenly, after throwing the acid, they turned back and went away and thereafter, 8 to 9 days after the occurrence, he had also identified the accused in the police station.

Further, the evidence of P.W.6 clearly shows that at the relevant point of time, at around 09.30 p.m., on 14.06.2009, in front of one Palanisamy tea shop, both the accused were found sitting. At that time, the deceased closed his shop and proceeded to his house. Later, both the accused took the bike and went in that direction and immediately, in 2 to 3 minutes, he heard the noise and at that time, P.W.3 Vadivelu was bringing the deceased by holding him and thereafter, they took him to the hospital. The very nature of the evidence of P.W.6 shows that though he has not seen the accused throwing the acid, the fact remains that when the accused left from tea shop, within two minutes, he heard the noise and immediately saw the deceased with burn injuries in the acid attack. It is relevant to note that P.W.13, the medical officer attached to Revathy hospital, when he was on duty on 14.06.2009 in the hospital during night hours, A-2 appeared for treatment for some acid burn injuries and informed him that some one has thrown acid on him. After the first aid, he left the hospital immediately to take treatment in some other hospital. P.W.13 though has not recorded any accident register copy as A-2 left the hospital before receiving the full treatment, the fact remains that A-2 appeared before him after sustaining acid injuries. There was no reason for P.W.13 doctor in a private hospital for giving false evidence to implicate the accused persons. Therefore, it is clear that before the accident register could be recorded, the accused left the hospital and therefore, mere non recording of accident register, in our view could not dent his evidence, since there was no motive for P.W.13 to give false evidence. The evidence of P.W.13 has been corroborated by the evidence of P.W.12, medical officer attached to the Government hospital, Bhavani who has also treated A-2 when he was produced by the police. According to him, on 23.06.2009, when A-2 was produced with the police memo, he found the injury of 10 days on the right side face, forehead, cheek, hands and also on the right side neck. A-2 has not denied the acid injury sustained 10 days prior to the treatment. Further, for the suggestion put to P.W.12 doctor, he suggested that the said injuries are possible due to sprinkling of acid through the tanker lorry. Therefore, the very suggestion to P.W.12 by A-2 clearly shows that he has not disputed the acid injury.

P.W.14, the medical officer attached to the Government hospital, Bhavani examined A-1 on 24.06.2009. He has also seen the irregular margin of acid injury. Ex.P.8 has been issued in this regard and multiple scald burn injuries were noted by him on various parts of his body. Even for the suggestion put to the doctor as to the nature of the injury, it was suggested that the injury may also be possible due to boiling liquid. Therefore, it is clear that the injuries sustained by both the accused at the relevant point of time was not disputed. The suggestions put forth during cross examination if incriminating the accused, the same would be a substantive piece of evidence. In this regard, it is relevant to cite a decision of Hon’ble Supreme Court in Balu Sudam Khalde Vs. State of Maharashtra reported in (2023) 13 SCC 365 and in paragraph 44, the Hon’ble Supreme Court has held as follows: ‘44.During the course of cross-examination with a view to discredit the witness or to establish the defence on preponderance of probabilities suggestions are hurled on the witness but if such suggestions, the answer to those incriminate the accused in any manner then the same would definitely be binding and could be taken into consideration along with other evidence on record in support of the same.’ It is further to be noted that A-1 surrendered before the Judicial Magistrate court, Dindigul. P.W.35, the wife of A-1, has also clearly spoken about his surrender. The custody of A-1 was taken by the investigating officer P.W.18 and later, he examined him and recorded his confession. The admissible portion of his confession was marked as Ex.P.4. Pursuant to the same, black colour helmet and dark blue colour shirt in the presence of Village Administrative Officer were seized under Ex.P.5, besides, a mug from the bush in the opposite side of Eduvai Road was recovered under Ex.P.6. It is relevant to note that these materials were also subjected to forensic examination. Ex.P.23 forensic report was filed in this regard.

All the material objects which were seized pursuant to the confession statement of accused, also contained Sulphuric Acid which also got tallied with the earth collected from the place of occurrence which also contains Sulphuric acid. All other material objects seized from the accused including the white gauze cotton piece which was used for taking sample from the bike where the acid was found also detected with Sulphuric acid as per the forensic science examination. Similarly, the helmet seized from the accused also was detected with Sulphuric acid. It is relevant to note that A-2 surrendered before the VAO (P.W.8) and P.W.8, in his evidence, has clearly stated that A-2 appeared before him on 22.06.2009 and gave confession. His extra judicial confession was also filed along with the special report, Ex.P.7, wherein he has also clearly narrated the occurrence. Later A-2 also handed over to the police station. The Inspector of Police arrested A-2 and recorded his confession statement separately under Ex.P.16 and jeans pant was seized from A-2. On forensic examination with other material objects, it is found that it also contains Sulphuric acid. Further, the dresses recovered from the dead body of the deceased also contains Sulphuric acid. The postmortem doctor's evidence also clearly shows that the deceased died due to Sulphuric acid poisoning and its complications. The accused also suffered injuries on the same day which has been clearly spoken to by P.W.12, P.W.13 and P.W.14, medical officers. It is not the case of the accused that they never suffered any such injury, but different statements have been given to the effect that the acid fell on them from the Acid tanker lorry and that some one has thrown acid on the accused. Therefore, when the accused themselves have not disputed the nature of the injuries suffered at the relevant point of time and Sulphuric acid detected from the material objects seized from them, it is for the accused to explain as to how they sustained injuries. These are all facts which are exclusively within the knowledge of the accused. In the absence of any explanation, it also points out the complicity of the accused to the crime. That apart, the intention of the accused to kill the deceased can be gathered from the evidence of P.W.32 from whom the accused no.1 has procured the acid by saying that he needs acid for cleaning the toilet. Further, the fact that the accused persons were waiting for the deceased is clear from the evidence of P.W.6, who has stated in his evidence that he has seen both the accused sitting in front of the Palanisamy tea shop and after the deceased leaving the medical shop, both the accused also left the place in the bike and within a couple of minutes, he heard the sound and saw the deceased with acid injuries. Therefore, all these facts are within the knowledge of the accused which he has to explain.

With regard to certain facts which are within the knowledge of the accused and it the accused who has to explain the same, the Hon’ble Supreme Court in Ram Gulam Chaudhary v. State of Bihar reported in (2001) 8 SCC 311 in paragraph 24 has held as follows: ‘24. Even otherwise, in our view, this is a case where Section 106 of the Evidence Act would apply. Krishnanand Chaudhary was brutally assaulted and then a chhura-blow was given on the chest. Thus chhura-blow was given after Bijoy Chaudhary had said “he is still alive and should be killed”. The appellants then carried away the body. What happened thereafter to Krishnanand Chaudhary is especially within the knowledge of the appellants. The appellants have given no explanation as to what they did after they took away the body. Krishnanand Chaudhary has not been since seen alive. In the absence of an explanation, and considering the fact that the appellants were suspecting the boy to have kidnapped and killed the child of the family of the appellants, it was for the appellants to have explained what they did with him after they took him away. When the abductors withheld that information from the court, there is every justification for drawing the inference that they had murdered the boy. Even though Section 106 of the Evidence Act may not be intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases like the present, where the prosecution has succeeded in proving facts from which a reasonable inference can be drawn regarding death. The appellants by virtue of their special knowledge must offer an explanation which might lead the Court to draw a different inference. We, therefore, see no substance in this submission of Mr Mishra.‘ (emphasis supplied)

In Sabitri Samantaray v. State of Odisha reported in (2023) 11 SCC 813, the Hon’ble Supreme Court has held in paragraph 18 as follows: ‘18. Section 106 of the Evidence Act postulates that the burden of proving things which are within the special knowledge of an individual is on that individual. Although the section in no way exonerates the prosecution from discharging its burden of proof beyond reasonable doubt, it merely prescribes that when an individual has done an act, with an intention other than that which the circumstances indicate, the onus of proving that specific intention falls onto the individual and not on the prosecution. If the accused had a different intention than the facts are specially within his knowledge which he must prove.‘

Therefore, it is clearly evident from the postmortem doctor’s evidence and the doctors who examined the accused persons that Sulphuric acid was present on the body of the deceased and also in the injuries sustained by the accused persons. Further, the material objects collected from the place of occurrence and dresses recovered from the deceased and accused persons also contains Sulphuric acid. That apart, the medical evidence and the scientific evidence also clearly indicate the presence of Sulphuric Acid on the dead body of the deceased and the material objects recovered from the place of occurrence and from the accused persons. Therefore, the scientific evidence clearly points out the guilt of the accused persons.

Further, fearing police action following the surrender of A-1 before the Court, the possibility of A-2 also surrendering before the VAO is more probable and therefore, such a surrender by the accused persons would lead to a conclusion that it is these accused persons who have committed the offence of throwing the acid on the deceased, who succumbed to the injuries sustained because of such acid attack and its complications which is clearly proved by the medical evidence. Further, such an acid attack was also proved by the evidence of witnesses and the evidence of witnesses are corroborated with each other clearly pointing the guilt of the accused.

Considering all these aspects coupled with the evidence of P.Ws.5 and 6 who have seen the accused at the relevant point of time and further the identity was also spoken to by P.W.5 and no motive whatsoever was established against P.W.5 to give false evidence, we are of the view that the evidence of the witnesses that they have clearly seen the bike of the accused persons passing them and immediately, they heard the sound of the deceased who sustained severe burn injuries on acid attack, the possibility of remembering the face of the accused by the witnesses is more probable. Therefore, in the absence of test identification parade, it cannot be said that the case in which the test identification parade was not conducted would fatal to the prosecution. P.W.6 has also seen the two accused in the tea shop and when the deceased left the place after closing the medical shop, these two accused also have gone in a bike and immediately, within 2 to 3 minutes, the occurrence took place. The evidence of P.W.5 in his cross-examination is clear that he has seen the accused in the light and later identified the accused in the police station, after their arrest and he has also seen them in the court. Therefore, in such a situation, when the identity of the accused is well established, we are of the view that the non conduct of test identification parade will not be fatal to the prosecution case.

With regard to the principle that the non conduct of the test identification parade is not fatal to the prosecution, it is relevant to note that the Hon’ble Supreme Court in Dharmendra Kumar v. State of M.P., reported in (2024) 8 SCC 60 in paragraph 47 has held as follows: ‘47. It is trite law that identification tests (TIP) do not serve as substantive evidence but are primarily intended to assist the investigating agency in ensuring that their progress in investigating the offence is on the correct path. Holding a TIP is not obligatory. Further, a failure to hold TIP cannot be a ground to eschew the testimony of witnesses whose evidence was concurrently accepted by the trial and appellate courts. [State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715] Additionally, a failure to hold a parade would not make inadmissible the evidence of identification in the court. [Heera v. State of Rajasthan, (2007) 10 SCC 175 : (2007) 3 SCC (Cri) 461] .‘

Considering all the aspects, we are of the considered view that though the motive aspect was not established by the prosecution, when the other circumstances, materials available and the evidence of the witnesses clinchingly prove the complicity of the accused to the crime and the involvement of the accused in the offence, the motive assumes insignificance. In this regard, it is relevant to mention here a decision of Hon’ble Supreme Court in Bipin Kumar Mondal Vs. State of West Bengal reported in (2010) 12 SCC 91 and paragraph 23 is relevant which reads as follows: ‘23. In Shivji Genu Mohite v. State of Maharashtra [(1973) 3 SCC 219 : 1973 SCC (Cri) 214 : AIR 1973 SC 55] this Court held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eyewitness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eyewitnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eyewitness is rendered untrustworthy .‘

In the light of the narrative thus far, we are of the view that the trial court is right in finding the appellants guilty and has rightly awarded the conviction and sentence, which in our view does not require any interference. Accordingly, both the criminal appeals are dismissed, confirming the judgment of the learned IV Additional District and Sessions Judge, Erode at Bhavani made in S.C.No.164 of 2010, dated 11.03.2021. Consequently, connected miscellaneous petition is closed. (N.SATHISH KUMAR J.)(K.RAJASEKAR J.) 15-09-2026