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2024 INSC 474 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1473 OF 2024

(ARISING OUT OF SLP (CRL.) NO.2756 OF 2019)

P. SASIKUMAR …APPELLANT

VERSUS

THE STATE REP. BY THE

INSPECTOR OF POLICE …RESPONDENT

JUDGMENT

SUDHANSHU DHULIA, J.

1. The appellant before us has challenged the order dated

12.01.2017 of the High Court of Madras which has upheld the

conviction of the appellant under Section 302 read with

Section 34 of the Indian Penal Code (hereinafter referred to as

‘IPC’) as well as under Section(s) 449, 404 and 201 r/w 302

IPC. He has been, inter alia, sentenced for life imprisonment

under Section 302 IPC.

Signature Not Verified

Digitally signed by
Jagdish Kumar
Date: 2024.07.08
18:09:52 IST
Reason:

2. It was a brutal murder of a 14-year-old girl committed inside

her house on the night of 13.11.2014, allegedly by two

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accused, one of them being the present appellant before this

Court. There is no direct evidence of the crime although there

is both ocular as well as forensic evidence placed by the

prosecution to prove the murder of the 14-year-old girl, at the

hands of the present appellant and another accused, who is

accused no.1 and also the main accused. The present accused

is accused no.2.

3. The case of the prosecution is largely based on circumstantial

evidence. FIR No.408/2014 was lodged on 13.11.2014 at

police station Alagapuram by PW-1 Durairaj, who is the

father of the deceased. The complainant states that he is

working as a Manager at JSP Granite Company at Salem,

Tamil Nadu and he has two daughters. The elder daughter

h a d studied engineering from Mahendra Engineering College

and is now working in L&T Company, Chennai. His younger

daughter was studying in the 8th standard in a local school in

Salem. His wife is working as an accountant in a private

company. On 13.11.2014 his wife had gone to Chennai to

meet their elder daughter as she was not well. The younger

daughter (deceased) was alone in the house. That day he had

called his younger daughter about 2-3 times, in order to

remind her to receive her tiffin but she did not answer his
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call. He had then made up his mind to return to his house

early. When he was climbing the stairs of his house at about

07:15 p.m., after parking his scooter, he saw a person aged

about 25 years, walking down the stairs. This man had a

helmet in his hand, which he immediately wore on seeing the

complainant. He found the door of his house open and his

daughter was bleeding profusely from her neck. Meanwhile,

neighbors had gathered on hearing his cries and they

informed him that two persons had come to his house who

had brutally killed his daughter. The deceased was still alive

was rushed to the hospital where she was declared dead.

4. The post mortem was conducted on the body of the deceased

by Dr. K. Gokularamanan (PW-14) at 10:30 a.m. next day on

14.11.2014 and the following antemortem injuries were found

on the deceased –

“1. A well extended broad cut injury on the

front side of neck and on both sides extending
up to the upper side of Thyroid ligament bone
measuring a depth of 14 x 6 up to the depth of
the bone and the neck spinal bone present in
the underside of injury, Adams apple,
muscles and blood vessels were seen on the
edges of the injury and blood outflow was
seen in the surrounding areas.

2. On the right hand side of the aforesaid

injury a cut injury on the lower and outer side
was seen which extended up to the backside
of neck measuring 12 x 4 depths in the
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muscles and blood outflow was seen in the

surrounding areas. No other injuries were
seen on the external parts of the body.”

According to the postmortem report, the cause of death

was shock due to the antemortem injuries on the neck and

profuse bleeding and the time of death was 12-18 hours prior

to the post mortem.

5. Meanwhile the FIR was registered as Case Crime

No.408/2014. The two accused were apprehended by the

Police on 15.11.2014, at about 10 p.m.

6. Recoveries were made during the investigation on their

pointing out which is as follows :-

From the pointing out of accused No. 1 :-

A black colour Pulsar Vehicle without registration number, a

black colour helmet, a black colour cell phone with broken

glass, a knife with a maroon handle and a checkered blood-

stained shirt were recovered.

From pointing out of accused No. 2 i.e. present appellant :-

A dark green monkey cap, a Samsung Galaxy Pro Cell Phone,

a blood-stained elephant-coloured jeans and a white/green

shirt were recovered.

7. At this juncture, we must also record that although there are

two accused in the case and, both were charged for the above
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offences and faced the trial and were convicted by the Trial

Court under Section 302 read with Section 34 IPC apart from

other offences such as 449, 404 and 201 r/w 302 IPC, yet

there is no record, before this Court of any appeal being filed

before the High Court by accused no. 1 who also stands

convicted and sentenced for the same offences like the

present appellant. This is also mentioned by the High Court

while deciding the appeal that they have before them only the

criminal appeal of accused No. 2 i.e. the present appellant-

Sasikumar, and the court is not aware of any Criminal Appeal

being filed by accused no.1 – Yugadhithan. Before us, thus,

is only accused no. 2. Accused no.1, who is the main accused

inasmuch as it was accused no.1 against whom the

prosecution additionally has a case of motive to commit this

murder.

8. The prosecution case is that when Harini (PW2)-the elder

sister of the deceased was a student in Mahendra Engineering

College, accused no. 1 (Yugadhithan) was also studying in the

same college and was totally infatuated by her. His feelings

were never reciprocated by the elder sister of the deceased. It

is because of this reason that he was enraged and had even

started stalking the elder sister of the deceased. He had even

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reached her present place of work L&T Company at Chennai,

causing much anxiety to her. PW2 had also complained

against accused no. 1 to the principal of Mahendra

Engineering College earlier stating that he had been harassing

her. The prosecution case further, is that accused no. 1 had

threatened the elder sister of the deceased warning her that if

she does reciprocate his feelings, he would kill her entire

family.

9. But the one who is before us today and whose conviction

stands confirmed by the High Court is not accused No.1 but

accused no.2. The entire question before us here is of

identification of accused no. 2. From all available evidences

which the prosecution has placed before the Trial Court, inter

alia, in the form of PW-1 and PW-5 have stated that accused

No.2 i.e., the present appellant was seen by them wearing a

“green colored monkey cap”. When this accused had entered

the premises, when he knocked the door of the house of the

deceased, when he was coming down from the stairs along

with accused no.1 and at all other relevant times the

witnesses who have seen and identified the accused no.2 i.e.,

the present appellant, had seen the appellant for the first time

on 13.11.2014 while he was wearing a green colored monkey

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cap. None of them had seen him earlier. PW-5 who is the

closest witness in this case states as under :-

“…I know Duraiaj. It could be 6.30 hours in the

evening on 13.11.2014. At that time I was taking
good water in balcony at that time a person went
wearing monkey cap. Another person went wearing
a helmet. The time could be 6.35, 640 hrs in the
evening. They both knocked the door of Tejashree
house and went inside the house. They both were
found talking inside in a sofa. They are the present
accused. They were asking phone number with
Tejashree for that Tejashree has told them that
father has gone out and he has to come. Both the
accused and Tejashree were found to be talking.
After taking water I went to my home. I informed my
house by around 7.00 hrs in the evening that I am
going to super market. Later I came back by 7 .25
hrs at that time Sun News was under broadcast
when I parked my vehicle and climbed stairs
Durairaj came behind me. When I placed the articles
in home within 5 minutes I heard the sound of
Durairaj. Immediately I went to Durairaj House.
After tearing the cloth he was shouting from the
place where his daughter was lying. I told Durairaj
that 2 person came and went half an hour prior to
that. I told Durairaj that they both kept Tejashree
sitting and was talking with her. Immediately call
was made to ambulance…”

PW-5 is said to have identified the accused later when both the

accused were apprehended by the police and were in the

hospital. In other words, while these two accused persons were

in the custody of the police this particular witness PW-5 was

taken to the hospital where he had identified the two accused.

This so-called identification, on which much reliance has been

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placed by the prosecution, was made by PW-5 in the hospital by

way of a statement to the police, and it can only be read as a

statement under Section 162 of the Criminal Procedure Code

which can only be used for the limited purpose as provided

under Section 162 of the CrPC itself.

The case of the prosecution is that both the accused were

apprehended on 15.11.2014 near the Salem-Coimbatore bye

pass fly over. The recovery of incriminating material such as

motor bike, weapon, the monkey cap, helmet, clothes etc. were

made on the same day. In other words, when the accused were

in judicial custody, there is nothing on record to suggest that

the investigating officer or the investigating team had taken any

permission from the Magistrate for the release of the accused

for these recoveries. These recoveries therefore, have no

relevance. At this juncture, we must reiterate that our

observation in this case and our finding and conclusions are

based only on the evidences and the material which is available

against the present appellant, it should not be construed in any

manner as a finding or a comment on the case of accused no. 1

who is not before us and evidently against whom the

prosecution has some more material, including motive. There

is also no motive against the present appellant. In fact, the

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Pulsar bike which has been recovered on pointing out of

accused no.1 does not belong to the appellant but was

purchased by a person named ‘Satish’ from the showroom and

this person ‘Satish’ has never been questioned by the police or

produced as a prosecution witness during the trial.

10. The admitted position in this case is that the test

identification parade (hereinafter referred to as ‘TIP’) was not

conducted. All the prosecution witnesses who identified the

accused in the Court such as PW-1 and PW-5 were not known

to the present appellant i.e., accused no.2. They had not seen

the present appellant prior to the said incident. He was a

stranger to both of them. More importantly, both of them

have seen the appellant/accused No. 2 on the date of the

crime while he was wearing a “green colour monkey cap”!

11. Now, as one is familiar a monkey cap covers the entire face,

chin and cheek of a person, leaving only his eyes and nose

and part of forehead exposed. These two witnesses (PW-1 and

PW-5), had seen the appellant wearing a monkey cap and that

too from a distance. Under these circumstances, TIP had

become necessary particularly when both the accused, who

are alleged to have committed this murder were arrested

within two days. The incident is of about 7:00 pm on

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13.11.2014 and both of them were arrested at around 10 pm

on 15.11.2014. The case of the prosecution is that while they

were being arrested, they received injuries as they tried to

escape and consequently, they were taken to the Hospital for

treatment. It was in the hospital, that PW-1 i.e. father of the

deceased and the complainant and PW-5 were taken by the

Investigating Officer who are said to have identified the two

accused as the one who had committed the crime. No

explanation whatsoever has been given by the prosecution as

to why TIP was not conducted in this case before a Magistrate

as it ought to have been done. In fact, the High Court has

recorded this flaw in the investigation at more than one place

in its judgment. It has again observed that the Investigating

Officer (PW-24) was before the Court and in spite of being

questioned as to what the reasons were for not holding TIP in

this case, no satisfactory reply was given by him.

12. It is well settled that TIP is only a part of Police investigation.

The identification in TIP of an accused is not a substantive

piece of evidence. The substantive piece of evidence, or what

can be called evidence is only dock identification that is

identification made by witness in Court during trial. This

identification has been made in Court by PW-1 and PW-5.

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The High Court rightly dismisses the identification made by

PW-1 for the reason that the appellant i.e., accused no.2 was

a stranger to PW-1 and PW-1 had seen the appellant for the

first time when he was wearing a monkey cap, and in the

absence of TIP to admit the identification by PW-1 made for

the first time in the Court was not proper. However, the High

Court has believed the testimony of PW-5 who has identified

accused no.2 under similar circumstances! The appellant was

also stranger to PW-5 and PW-5 had also seen the accused

i.e., the present appellant for the first time on that fateful day

i.e. on 13.11.2014 while he was wearing a green colour

monkey cap. The only reason assigned for believing the

testimony of PW-5 is that he is after all an independent

witness and has no grudge to falsely implicate the appellant.

This is the entire reasoning. We are afraid the High Court has

gone completely wrong in believing the testimony of PW-5 as

to the identification of the appellant. In cases where accused

is a stranger to a witness and there has been no TIP, the trial

court should be very cautious while accepting the dock

identification by such a witness (See: Kunjumon v. State of

Kerala (2012) 13 SCC 750).

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13. After considering the peculiar facts of the present case, we are

of the opinion that not conducting a TIP in this case was a

fatal flaw in the police investigation and in the absence of TIP

in the present case the dock identification of the present

appellant will always remain doubtful. Doubt always belongs

to the accused. The prosecution has not been able to prove

the identity of the present appellant i.e. A-2 beyond a

reasonable doubt.

The relevance of a TIP, is well-settled. It depends on the

fact of a case. In a given case, TIP may not be necessary. The

non conduct of a TIP may not prejudice the case of the

prosecution or affect the identification of the accused. It

would all depend upon the facts of the case. It is possible

that the evidence of prosecution witness who has identified

the accused in a court is of a sterling nature, as held by this

Court in the case of Rajesh v. State of Haryana (2021) 1

SCC 118 and therefore TIP may not be necessary. It is the

task of the investigation team to see the relevance of a TIP in a

given case. Not conducting TIP in a given case may prove

fatal for the prosecution as we are afraid it will be in the

present case.
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14. The relevance of TIP has been explained by this Court in a

number of cases (Please see: Ravi Kapur v. State of

Rajasthan (2012) 9 SCC 2841, Malkhansingh and Ors. v.

State of Madhya Pradesh (2003) 5 SCC 7462).

15. In the facts of the present case, the identification of the

accused before the court ought to have been corroborated by

the previous TIP which has not been done. The emphasis of

TIP in a given case is of vital importance as has been shown

by this Court in recent two cases of Jayan v. State of Kerala

(2021) 20 SCC 38 and Amrik Singh v. State of Punjab

(2022) 9 SCC 402. In Jayan (supra), this Court disbelieved

the dock identification of the accused therein by a witness

and while doing so, this Court discussed the aspect of TIP in

the following words:

“It is well settled that TI parade is a part of

investigation and it is not a substantive evidence.
The question of holding TI parade arises when the
accused is not known to the witness earlier. The
identification by a witness of the accused in the
Court who has for the first time seen the accused in
the incident of offence is a weak piece of evidence
especially when there is a large time gap between
the date of the incident and the date of recording of
his evidence. In such a case, TI parade may make
the identification of the accused by the witness
before the Court trustworthy….” (Para 18)

1 Para 35
2 Para 16
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16. Under these circumstances, we hold that the identity of

the present appellant is in doubt. The appellant could not

have been convicted on the basis of a very doubtful evidence

as to the appellant’s identity. The appeal is allowed and the

impugned order of the High Court dated 12.01.2017 is hereby

set aside. The appellant has been in jail for about 8 years as

we have been told at the Bar, he shall be released forthwith

unless he is required in some other case. We make it

absolutely clear that this decision of acquittal is based on the

evidence, or lack thereof, which the prosecution has against

accused no. 2 i.e. the present appellant. This will absolutely

have no bearing on the case of accused no.1.

…….…………………………..J
[SUDHANSHU DHULIA]

………..………………………J.
[PRASANNA B. VARALE]

New Delhi
July 8, 2024