MAQBOOL @ ZUBIR @ SHAHNAWAZ AND ANR.versusSTATE OF AP.

                    [2010] 7 S.C.R. ,001


    MAQBOOL @ ZUBIR @ SHAHNAWAZ AND ANR.                            A
                               v.
                       STATE OF AP.
             (Criminal Appeal No. 435 of 2008) ·
                        JULY 08, 2010
                                                                    8
 [DR. B.S. CHAUHAN AND SWATANTER KUMAR, JJ.]

     Penal Code, 1860 - s.302 - Conviction by courts below
based on evidence of eyewitnesses - Interference with - Held:
Not called for as the evidence of eyewitnesses and medical          C
evidence supported the case· of prosecution - Entries made
in a diary recovered during investigation depicted the plan of
the crime, its commission and result - Concurrent finding of
courts below that entries in diary provided substantial support
to the case of prosecution - Thus, prosecution was able to          D
prove the case beyond reasonable doubt.

     Investigation - Lacunae in - Duty of Investigating Officer
while investigating a murder case - Held: Investigating Officer
is expected to perform his duties with greater caution, sincerity   E
and by taking recourse to appropriate scientific methods for
investigating such a heinous crime - Direction to Director
General of Police, Andhra Pradesh to examine this aspect
and take action in accordance with law.

     Prosecution case was that on the night of 2nd                  F
August, 1999, the deceased was coming home along with
his employee PW-1 and PW-3. The deceased was
carrying a bag containing cash. When the deceased
reached near his house, one of the accused persons
intercepted the deceased and tried to snatch the bag                G
from him. The deceased resisted and the accused fired
a shot at him. The wife of deceased (PW-2) and the
daughter opened the door and found that deceased was
lying injured on the ground. The deceased was taken to
                              1001                                  H
    1002   SUPREME COURT REPORTS              [2010) 7 S.C.R.

A hospital where he died. The trial Court convicted A-1
  under Sections 302 and 120-B IPC whereas A-2 to A-8
  were convicted under Sections 302/109 and 1208 IPC.
  High Court partly allowed the appeal filed by the accused
  persons. The conviction of appellants under Section 120-
8 B was set aside, however conviction under Section 302
  was maintained. Hence the appeal.

        Dismissing the appeal, the Court
       HELD: 1. PW1 and PW2 cannot be stated to be
C interested witnesses and in any case not of the kind that
  they should be disbelieved merely because they were in
  employment with the deceased and/or wife of the
  deceased. The circumstances of a case have to be
  examined in their normal conduct. It is but natural that the
o deceased employer who was carrying cash would
  normally ask some of his trusted employees to come
  with him. PW1 was working as a salesman. His statement
  clearly showed that he was fully aware about the facts
  of the business and had stated that a lorry of spare parts
E had come on fateful night at about 10.30 P.M. where PW3
  and another person were also present. Cash of Rs.40,000/
  - approximately was in the bag, which the deceased was
  carrying. PW1 was walking with him, while PW3 was
  following from behind. He stated that he could easily
F identify both the persons. This witness had sufficient time
  to recognize the assailant inasmuch as first the assailant
  had an altercation with the deceased. His demand for the
  cash bag containing the cash was resisted by the
  deceased, whereafter, he shot the deceased, snatched
  the bag and then waited for the vehicle-motorcycle to
G come, on which both A1 and A2 fled away from the site.
  PW2, the wife of deceased clearly stated that on the date
  of the occurrence, she had switched on the tube lights
  and the light fell on the main road. She also confirmed
  that there was illumination from the Nursing Home which
H was opposite to the house. In tf:le cross-examination, she
 MAQBOOL @ ZUBIR @ SHAHNAWAZ AND ANR. v. 1003
              STATE OF A.P.
specifically denied the suggestion that she could not see       A
the persons who were coming from right side on the road
and she stated that the out house was adjacent to the
main road. The incident took place at the distance of 300
feet from the house of the owner. After hearing the sound,
PW-2 immediately ran towards the body of the deceased           B
and then took him to hospital. Their statements
apparently appeared to be correct. They did not
exaggerate ,any facts. Their statements appeared to be
truthful description of the events that occurred in their
presence or of what they had the knowledge. [Paras 7,           c
8, 9] [1011-C-H; 1012-A-H; 1013-A-F]
     2.1. The statement of the investigating officer has to
be read in its entirety. Certainly, the investigating officer
failed to conduct the i~vestigation as per the expected
standards. The case could have been investigated with           D
greater care, caution and by application of scientific
methods, however, it would not give the accused/
appellants any benefit because PW1 was never
confronted with his statement under Section 161 Cr.P.C.
during her cross-examination with regard to facts. There        E
is no reason to disbelieve PW1, PW3 and other witnesses
who said that there was sufficient illumination at the place
of occurrence. It was expected of the investigating officer
to seize from the place of occurrence such articles or
items including the bloodstain earth or empties,, Which         F
were available even as per his statement. This lacuna in
investigation stood completely coyered by the statement
of the witness, the medical,r,eJ)Ort and the eye-witness
version. The evidence of tl'ie doctors as well as that of
the PW1 clearly established the story of the prosecution.       G
According to the investigating officer, there were few
other people and there was a bus stand near the place
of occurrence. The Investigating Officer fully
corroborated the statement of PW1 and other witnesses.
The identification parade was conducted on 29th July',
                                                                H
    1004   SUPREME COURT REPORTS             [2010] 7 S.C.R.


A 2000. This identification parade was performed in the
  jailor's office room and the witnesses were examined by
  the Magistrate. The Magistrate had required and the jailor
  then had provided non-suspect persons who were asked
  to participate in the parade after the accused had
B expressed his satisfaction, he even was asked to stand
  in any place in the row with the known-suspects and
  thereafter PW-1 was brought to the Test Identification
  Parade and then the accused was identified in
  accordance with law. The identification parade was
c closed. Despite the said Test Identification Parade was
  conducted in accordance with law, the appellants raised
  objections and stated that they were in illegal
  confinement of the police and their photographs were
  shown and the identification parade itself was conducted
  after such a long time. The said objections cannot be
D sustained. The accused himself was arrested after one
  year and it was only thereafter that the investigating
  officers was able to collect substantial evidence and then
  after arresting all the concerned accused, the
  identification parade was conducted. Thus, there was no
E delay in conducting the identification parade. There was
  nothing on record to show or prove that these accused
  were in illegal custody or confinement of the police. In
  order to prove this plea, they produced four witnesses
  but they could not bring any records or any other cogent
F or substantial evidence to prove the alleged case of
  illegal confinement and/or for that matter that they were
  shown to the witnesses before the identification parade
  was conducted by the investigating officer. Both the Trial
  Court as well as the High Court disbelieved the witnesses
G of the defence in that regard. [Paras 10, 11, 12] [1015-A-
   F; 1016-E-G; 1018-B-D]
        Siddartha Vashisht @ Manu Sharma v. State (NCT of
    Delhi) JT 2010 (4) SC 107 - relied on.
H
 MAQBOOL@ ZUBIR@ SHAHNAWAZ AND ANR. v. 1005
            STATE OF A.P.

     Musheer Khan v. State of M.P. (2010) 2 SCC 748 -         A
referred to.
     2.2. The extract of diary which was recovered during
the investigation had various entries, which related to the
planning of the crime, its commission and result thereof.
                                                              8
This aspect was discussed by the Trial Court. The High
Court also examined this question in some elaboration.
The concurrent finding thus was that these extracts from
the diary provided substantial support to the case of the
prosecution. The prosecution was able to prove its case
beyond reasonable doubt. The gravity of the offence, the      C
manner in which it was committed and the conduct of the
accused did not call for any interference by this Court
even on the question of quantum of sentence. [Para 15,
16) [1021-E-G; 1022-A-B]
                                                              D
    2.3. The Investigating Officer (PW-25) was expected
to perform his duties with greater caution, sincerity and
by taking recourse to appropriate scientific methods for
investigating such a heinous crime. The Director General
of Police, Andhra Pradesh is directed to examine this         E
aspect and take action in accordance with law. [Paras 17)
[1022-C-D]
                    Case Law Reference:
    (2010) 2 sec 748            referred to       Para 5
                                                              F
    JT 2010 (4) SC 107          relied on         Para 13
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 435 of 2004.
    From the Judgment & Order dated 27 .02.2007 of the High   G
Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
1825 of 2004.
    Kamini Jaiswal, for the Appellants.
    Altaf Fathima, D. Bharathi Reddy for the Respondent.      H
    1006    SUPREME COURT REPORTS                    [2010) 7 S.C.R.


A       The Judgment of the Court was delivered by

         SWATANTER KUMAR, J. 1. The present appeal is
    directed against the Judgment of the High Court of Judicature
    of Andhra Pradesh at Hyderabad dated 27th February, 2007
    wherein the Court passed the following judgment of conviction
8
    and order of sentence:

               "Crl. A. No. 1825 of 2004 is allowed in part. The
        convictions and sentences imposed on A.1 for the offence
        under Section 302 l.P.C. and Section 3 r/w 25 (1-B) (a) of
C       Arms Act are confirmed. The conviction imposed on A.2
        for the offence under Section 302 r/w 1091.P.C. is modified
        and he is convicted for the offence under Section 302 r/w
        34 l.P.C. and sentenced to suffer imprisonment for life and
        also to pay a fine of Rs.1,000/- in default, to suffer 6 months
D       simple imprisonment. The conviction and sentence
        imposed on A.1 and A.2 for the offence under Section
        120-B l.P.C. is set aside. So far as A.4 and A.6 are
        concerned, they are foupd not guilty for any of the offences
        under Sections 120-B and 302 r/w Section 109 l.P.C. and
E       accordingly, the convictions and sentences imposed on
        them for the said offences are set aside. Therefore, A.4
        and A.6 shall be set at liberty forthwith if they are not
        required in any other crime. The fine amount, if any, paid
        by them shall be refunded.
F             Crl.A. No.1886 of 2004 is allowed and the
        convictions and sentences imposed on A.8 for the offences
        under Sections 120-B and 302 r/w Section 109 l.P.C. are
        hereby set aside. He shall be set at liberty forthwith, if not
        required in any other crime. The fine amount, if any, paid
G       by him shall be refunded.

              Crl.A. No.2220 of 2004 is allowed and the
        convictions and sentences imposed on A.3 and A.5 for the
        offences under Sections 120-B and 302 r/w Section 109
H
 MAQBOOL @ ZUBIR @ SHAHNAWAZ AND ANR. v. 1007
    STATE OF A.P. [SWATANTER KUMAR, J.]

    l.P.C. are hereby set aside. They shall be set at liberty         A
    forthwith, if not required in any other crime. The fine amount,
    if any, paid by them shall be refunded."

     2. As is apparent from the above judgment of the High
Court that it modified the judgment of the Trial Court insofar as     8
conviction of accused No.A2 was concerned. However, it
completely acquitted accused A3 to A6 and AB of all the
offences. From the record, it appears that A7 was merely the
author of the diary and was charged along with other accused
of the offence under Section 396 of the IPC and for that offence,
the Trial Court had in fact acquitted all the accused of this         C
charge including A7. At the very outset, we may notice that no
appeal has been preferred against their acquittal by the State
or the competent authority. Thus, in the present appeal we are
only concerned with the appeal of accused Maqbool @ Zubir
@ Shahnawaz and Mohd. Feroz Khan@ Feroz referred tO as                D
appellants herein.

      3. The prosecution had brought before the Court of
Session nine accused to face the trial. Out of these, one Azam
Ghori is stated to have been killed in an encounter on 6th April, E
2000 and consequently proceedings against him came to an
end. While other eight accused faced the trial and were finally
found guilty and were punished for different offences.
                                                 I
                                                        A1 was
found guilty for offence under Section 302, whereas A2 to AB 1
for the offence under Section 302/109 IPC .. However, they all F
were acquitted for the charge of an offence under Section 396
IPC but were also punished for 120-B IPC. The facts from the
record shows that somewhere in July 1999, Azam Ghori who
died during the Trial organized a Tanjeem along with his
associates accused A 1 to AB, hatched a conspiracy to snatch G
away the cash bag from one Ramakrishna Rao, the owner of
a cycle shop called 'Krishna Cycle Stores', New Bus Stand,
Bodhan. In pursuance of the said conspiracy on 2nd August,
1999 accused chalked out plan at Sarbathi Canal Mosque,
Bodhan that A1 should snatch the bag of the deceased and H
    1008   SUPREME COURT REPORTS                [2010] 7 S.C.R.


A A2 Feroz Khan should drive the vehicle to escape from the
  scene after commission of the offence and remaining of them
  i.e. A3 to A9 should watch the movements by taking shelter near
  the shop and house of the deceased for successful
  implementation of their plan. A6 Mohd. Abdul Mateen @
s Muzaffar had provided his motorcycle while A9 gave his pistol
  to A 1 for the purposes of committing the crime. It was decided
  that in the event Ramakrishna Rao showed any resistance and
  did not hand over the bag containing cash, they will shoot him
  and run away from the place of occurrence. Ramakrishna Rao
c was in his cycle shop called 'Krishna Cycle Stores' and also
  had second show collections of the theatre in the evening. He
  used to come back to his place with cash. On the night of 2nd
  August, 1999, a lorry loaded with spare parts of Hero Cycle
  came to the shop of the deceased and the goods were
  unloaded into the shop by 10.30 P.M. The deceased had
0
  second show collection from the theatre which is estimated to
  be of Rs.40,000/-. After closing the shop, he was proceeding
  to his house which was about 500 to 600 feet away and his
  salesman was accompanying him. One Nazar and Hamid were
E following him and all of them were going on foot. When they
  were about to reach the house of the deceased that the
  accused intercepted and demanded the deceased to handover
  the bag. As already noticed, there was resistance and
  arguments, resultantly the accused had fired three shots from
  his pistol, snatched the bag and ran away. When the deceased
F fell down PW1 one Prasad, PW2, the wife of the deceased and
  his elder daughter took the deceased to the Government
  Hospital, Bodhan in an auto and as no doctor available at the
  Hospital they took the deceased to Santhan Nursing Home
  where he was declared dead by the doctors. Thereafter, PW1
G went to the police station at about 11.50 P.M. and gave
  complaint to the Sub-Inspector of Police Station. The Inspector
  was examined as PW23 and a complaint submitted was Ext.
  P.1. On this basis, an F.l.R. was registered under Section 302
  and 379 r/w 34 l.P.C. and Section 25 & 27 of Indian Arms Act
H
 MAQBOOL @ ZUBIR @ SHAHNAWAZ AND ANR. v. 1009
    STATE OF A.P. [SWATANTER KUMAR, J.]

being Ext. P.35. It may be noticed here that as per the evidence    A
on record, the wife and daughter of the deceased were sitting
on the first floor of the house and they came to have seen the
deceased, PW1 coming to the house as well as his altercation
with the accused. They had come down with the key to open
the door for the deceased to enter the house however, when          B
they opened the door th.e firing had taken place and the
deceased was lying on the ground.

     4. The investigating officer was examined as PW18, who
took up the investigation, examined the witnesses and recorded      C
the statement after preparing the sketch of the case of
occurrence Ext. P11 and scene of offence panchanama Ext.
P10. They were prepared in presence of PW9. The body of the
deceased was sent for postmortem. PW14, Dr. B. Santosh
conducted the autopsy over the dead body of the deceased and
issued postmortem report certificate expressing the opinion as      D
Ext.P15. The cause of death was identified to be internal
 hemorrhage and shock caused by a fire arm injuries.

     5. Test Identification Parade for both the accused was held
on 6th July, 2000 and 29th July, 2000 by PW17 and PW20 and          E
relevant proceedings were marked as Ext. P17 and P28
respectively. After completion of the investigation, charge-sheet
was filed in the Court. All the accused were subjected to trial.
The prosecution examined as many as 26 witnesses and relied
on documentary evidence Ex. P1 to Ext. P39. After making their      F
statements under Section 313 Cr.P.C., the accused also
examined four witnesses. Ultimately, they were found guilty and
awarded sentence by learned Sessions Court as afore-
noticed. The judgment of the Sessions Court was partially set
aside by the High Court. Dissatisfied from the judgment of the      G
High Court, the present appeal has been filed by the two
appellants challenging the legality and correctness of the
judgment of the High Court. The arguments advanced on behalf
of the appellants are:

     (i) The prosecution has not been able to establish the guilt   H
    1010    SUPREME COURT REPORTS                     [2010] 7 S.CR.


A       of the accused beyond any reasonable shadow of doubt.
        Non production of material evidence, findings being
        recorded on surmises and their being no direct evidence
        of conspiracy, the accused were entitled to the benefit of
        doubt.
B
        (ii) The investigation of the case was so faulty that even
        important piece of evidence like blood stained earth,
        empties were admittedly not collected from the place of
        occurrence and no seizure memos were prepared, as
        stated by the Investigating Officer. This clearly creates a
c       dent in the case of the prosecution.

        (iii) The findings otherwise recorded are based on no
        evidence and are perverse.

D       (iv) From the case of the prosecution, it is clear that there
        was no light at the place of occurrence and the incident
        being that of 10.30 P.M. the visibility was bound to be NIL
        and as such, the version of the so called eye-witness was
        not true.
E       (v) In fact, the very persons of the eye-witnesses on the site
        is doubtful. The Identification Parade was conducted
        contrary to the settled law and in fact, it is no identification
        parade in the eye of law. The accused were in police
        custody and accused as well as their photographs had
F       already been shown to the witnesses who were required
        to identify the appellant in the identification parade which
        itself was conducted after more than one year of the date
        of occurrence. Such identification parade could not be the
        basis of conviction as held by this Court in Musheer Khan
G       v. State of M.P. [(2010) 2 sec 748].

        6. There was complete denial of the charge by the
    appellants having completely denied their involvement and took
    up a stand that they had been falsely implicated in the crime
H
 MAQBOOL@ ZUBIR@ SHAHNAWAZ AND ANR. v.1011
    STATE OF A.P. [SWATANTER KUMAR, J.]

and PW1 and PW2 both being interested witnesses, the                  A
prosecution case has not been established in accordance with
law.

      7. Common evidence will have to be discussed for
deciding the merit of the submissions made on behalf of the
                                                                      8
appellant. Thus, we proceed to discuss all these issues together
as in any case they are interlinked. First of all, we must record
that PW1 and PW2 cannot be stated to be interested witnesses
and in any case not of the kind that they should be disbelieved
merely because they were in employment with the deceased
and/or wife of the deceased. The circumstances of a case have         C
to be examined in their normal conduct. It is but natural that the
deceased employer who was carrying cash would normally ask
some of his trusted employees to come with him. PW1 was
working as a salesman. His statement clearly shows that he
was fully aware about the facts of the business and had stated        D
that a lorry of spare parts had come on 2nd August, 1999 at
about 10.30 P.M. where PW3 and Hamid were also present.
Cash of Rs.40,000/- approximately was in the bag, which th~
deceased was carrying. PW1 was walking with him, while PW3
was following from behind. The appellant had shown a revolver         E
and had stated that the bag should be given to him and when
the deceased questioned the said person and PW1 wanted to
 interfere, he threatened him saying that if he took a step forward
he would be shot. Again, on being questioned by the owner,
 he shot the owner thrice with the revolver and he fell down. The     F
 other person came on a motorcycle to the spot and these
persons fled away on the motorcycle. He clearly stated that he
could easily identify both the persons. This witness had
 sufficient time to recognize the assailant inasmuch as first the
 assailant had an altercation with the deceased. His demand           G
for the cash bag containing the cash was resisted by the
deceased, where after, he shot the deceased, snatched the
 bag and then waited for the vehicle-motorcycle to come, on
 which both A 1 and A2 fled away from the site. It was nobody's
 case that these two persons were wearing helmets or that their       H
    1012     SUPREME COURT REPORTS                 [2010] 7 S.C.R.

A faces were covered. In other words, there was sufficient time
  and opportunity for this witness and others to see and recognize
  both the assailants. About the availability of the light, he had
  stated that there was one tube light glowing at the house of the
  owner and there was also light from the illumination of Surya
B Nursing Home and even during the identification parade, he
  had identified both the co-accused. He had taken the deceased
  along with others to the Government Hospital and then to the
  Nursing Home. In his detailed cross-examination, nothing
  material could come out. He specifically denied that any
c photographs were showed to him by the police on the contrary,
  he received a letter to go to Chanchalguda Jail at Hyderahad
  to identify the assailant. In his cross-examination, he clearly
  stated as follows:

               ''The distance between the place where my owner fall
D       down and the house of my owner is about 35 feet. The tube
        light was at the third shutter which pertains to the house of
        my owner. After one year of the incident I came to know
        that the persons who are responsible for the murder of my
        owner were apprehended. I came to know about their
E       apprehension when the police came to me to enquire
        whether I can identify the assailant."

         8. Similarly, PW2, the wife of deceased clearly stated that
    on the date of the occurrence, she had switched on the tube
F   lights and the light would fall on the main road. She also
    confirmed that there was illumination from the Nursing Home
    which is opposite to the house and about the date of incident
    she made the following statement:

        "On 2.8.1999 at 10.45 p.m. I was sitting by the side of the
G       window. I was waiting for my husband. At about 10.45 p.m.
        my husband PW.1 and another person came upto my
        house. When my husband reached my house he had an
        altercation with one person. At that time PW.1 and another
        person was there. I saw my husband and I got up with keys
H
 MAQBOOL @ ZUBIR @ SHAHNAWAZ AND ANR. v. 1013
    STATE OF A.P. [SWATANTER KUMAR, J.]

    to go down stairs to open the lock. At that time I heard the A
    sound of 'Dam'. I heard that sound': By the time I got down
    from the house and went to the spot my husband was lying
    on the road. Hearing my cries, my family members and
    others gathered there. PW.1 told me that there was a cash-
    of Rs.40,000/- in the bag. When I questioned PW.1 he told B
    me that the said bag was taken away. I can identify the
    person who had altercation with my husband. The accused
    are brought near to the witness chair and. the witness
    pointed out A.1 who is standing in the fifth position from
    the left side and said that A.1 had altercation with her       c
    husband. I am seeing A.1 today in the Court after the
    incident. Police examined me. One motor cycle came to
    the spot and took away the assailant who shot my husband.
    One person was riding the motor cycle."

     9. In the cross-examination, she specifically denied the      D
suggestion that she could not see the persons who are coming
from right side on the road and she stated that the out house
is adjacent to the main road. PW3, Nasir Khan fully
corroborated the statement of PW1 and that they stayed at
Swathi Hotel for taking tea. The incident took place at the        E
distance of 300 feet from the house of the owner. After hearing
the sound, she immediately ran towards the body of the
deceased and then took him to hospital. Their statements
apparently appear to be correct. They have not exaggerated
any facts. Their statements appear to be truthful description of   F
the events that occurred in their presence or of what they have
the knowledge. As far as PW1 is concerned, he is a witness
to the entire incident. No doubt, the investigating officer had
appeared as PW18 and according to him after he had taken
up the investigation, he was working as inspector in the police    G
station at the relevant time. He had prepared rough sketch of
the place of occurrence which was Ext.11 and according to him
it was a rainy day. He stated .that PW2 had not stated before
him that there was sufficient illumination because of tube light
and Nursing Home and from the public street light. This witness    H
    1014    SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A has stated that when he went to the place of occurrence, number
  of people had assembled there. The following extracts of
  examination-in-chief of this witness, has been relied upon by
  the learned Counsel appearing for the appellant.

                "It is true that PW.2 did not state before me that she
B
        would be watching the people who will be coming to her
        house while sitting at the window during her examination.
        It is true that PW.2 did not state before me that there was
        illumination from her house and from the Nursing home and
        from public street lights.
c
        After taking up investigation firstly, I went to the scene of
        offence. I reached the scene of offence by about 12.45
        A.M. When I wentto the scene of offence many people
        were present there and from among the persons I secured
D       Shivakumar (PW9). PW9 was in the public but I cannot tell
        exactly as to where he was standing or sitting in the public.

        I have not collected anything from the scene of offence as
        it was drizzling and also as there was public rush at the
        spot. I have not examined any one at the auto stand. I saw
E
        blood stains on the left side of the road while facing
        towards Nizamabad. The blood stains were found on the
        edge of the road. It is true that opposite to the house of
        the deceased there are business shops. In Ext.P10 there
        is no mention about the existence of tube lights at the scene
F       of offence."

        10. While relying upon these extracts of the examination-
  in-chief and cross-examination of this witness, the learned
  Counsel appearing for the appellant contended that since the
G bloodstain earth and nothing else recovered from the premises
  including the empties of the gun shots. The entire investigation
  of the case is faulty and cannot be relied upon. The statement
  of the investigating officer is found to be not supporting the case
  of the prosecution. The whole case of the prosecution should
H fall. Firstly, we cannot read these statements out of context and
 MAQBOOL@ ZUBIR@ SHAHNAWAZ AND ANR. v. 1015
    STATE OF A.P. [SWATANTER KUMAR, J.]

they must be examined in their entirety. In other words, the          A
statement of the investigating officer has to be read in its
entirety and then any conclusion can be drawn. Certainly, this
investigating officer has failed to conduct the investigation as
per the expected standards and we have no hesitation in
observing that the case could have been investigated with             B
greater care, caution and by application of scientific methods.
It will not give the accused/appellants any benefit because PW1
was never confronted with his statement under Section 161
Cr.P.C. by the appellant during her cross-examination with
regard to the above facts. What she had stated before PW14,           c
would be best recorded in the statement under Section 161
Cr.P.C. That steps having not been taken by the appellant in
accordance with law, now, they cannot drive any benefit.
Secondly, not only PW2 but even other witnesses have stated
that there was sufficient light in and around the place of            D
occurrence because of street light, light from the house of the
deceased, bus stand and the Nursing Home. There is no
reason for us to disbelieve PW1, PW3 and other witnesses
who said that there was sufficient illumination at the place of
occurrence and the argument advanced by the appellants hardly
has any merit. Yes, it was expected of the investigating officer      E
to seize from the place of occurrence such articles or items
including the bloodstain earth or empties, which were available
even as per his statement. This lacuna in investigation stands
completely covered by the statement of the witness, the medical
report and the eye-witness version. Dr. K. Raja Gopal Reddy,          F
 Professor and Head of the Forensic Department, Gandhi
Medical College who had performed postmortem was
examined as PW24 and he stated that his opinion had been
sought by the investigating officer. After going through the report
 and the inquest report, he had stated that the probable weapon       G
 used was rifle fire-arm and Ext.P13 was his opinion. In Ext.P15
which is the postmortem report, the injuries have been
described as under:

     "11.lnjuries:                                                    H
    1016     SUPREME COURT REPORTS                   [2010] 7 S.C.R.


A        Fire arm:

         Entry wounds:

         1. Ulnar medical surface of right wrist 2 ems diameter.

B        2. Oblique 3 cm x 2 cm, below medical end of right clavicle
         in front of chest.

         3. Circular 2 cm diameter below medical end of left clavicle
         in front of chest.

C        Exist wounds:

         1. Radial lateral surface of right wrist 3 cm diameter.

         2. Oblong 4 x 3 cm post surface of right side chest by the
         side of spine.
D
         3. Circular 3.5 cm, 3 cm below the exist wound No.2."

         11. The above evidence of the doctors as well as that of
    the PW1 clearly establishes the story of the prosecution.
E   According to PW1, the assailants fired through armed shots
    and as per medical evidence also, there are three injuries and
    exists injuries on the body of the deceased. We have also
    noticed that the investigating officer failed to perform his duties
    appropriately in not recovering the bloodstain earth as well as
F   the empties since they were not in the body of the deceased.
    According to the investigating officer, there were few other
    people and there was a bus stand near the place of
    occurrence. The Investigating Officer fully corroborated the
    statement of PW1 and other witnesses. Another important
    factor which has to be noticed is, probably the way this
G   investigating officer has conducted the investigation, that
    investigation of the case was transferred to CID after some time
    and, it was CID which completed investigation of the case.
    PW25 and PW26 have then conducted investigation at a later
    stage. According to PW25, M. Vankata Rao he had arrested
H   the accused as well as seized certain items vide Ext. P38
 MAQBOOL @ ZUBIR @ SHAHNAWAZ AND ANR. v. 1017
    STATE OF A.P. [SWATANTER KUMAR, J.]

including a scooter while Ashok Kumar PW26 claimed that he A
was working as inspector and as per Memo No. 1214/C12/CID/
2000 of the Additional DGP, CID this case was given to him
for investigation. After the arrest of Mirza Qasim Baig, A.4 and
his confessional statement, the systematic investigation was
conducted by him and he arrested accused Kameel as well as 8
accused Feroz somewhere on 2nd June, 2000. He even
recorded the statement of PW4. On 17th June, 2000, he
submitted a requisition before the JFCM for holding Test
Identification Parade for identification of both the appellants and
he was the main investigating officer who conducted the c
investigation and arrested the main accused. During
investigation a diary/writing was also recovered relating to the
activity of the accused particularly, the occurrence in question.
The writing was sent for comparison to the Forensic Science
Laboratory at Hyderabad and which had expressed an opinion D
that the persons who wrote the red enclosed writings marked
as S1 to S29 also wrote the red enclosed writing marked Q1
to Q378, 0131/1 and Q.122/1. The identification parade was
conducted on 29th July, 2000 at 3.30 P.M. vide Ext.P28. This
was conducted and completed by 8th Metropolitan Magistrate, E
Hyderabad. This identification parade was performed in the
jailer's office room and the witnesses were examined by the
Magistrate. The Magistrate had required and the jailor then had
provided non-suspect persons who were asked to participate
 in the parade after the accused had expressed his satisfaction,
he even was asked to stand in any place in the row with the F
known-suspects and thereafter Y. Krishna Mohan (PW-1) was
brought to the Test Identification Parade and then the accused
was identified in accordance with law. The identification parade
was closed. Despite the above Test Identification Parade
 having been conducted in accordance with law, the appellants G
 have raised objections to the identification parade and have
 stated that they were in illegal confinement of the police. Their
 photographs were shown and the identification parade itself
 has been conducted after such a long time. While relying upon
the case of Musheer Khan (supra), it is contended that they H
    1018   SUPREME COURT REPORTS                  [2010] 7 S.C.R.


A were retained in police custody and that discrepancies
  discernable in his identification by the witness renders the
  identification unbelievable and improper.

        12. These arguments do not impress us. The accused
8 himself was arrested after one year and it was only thereafter
  that the investigating officers had been able to collect
  substantial evidence and then after arresting all the concerned
  accused, the identification parade was conducted on 27th July,
  2000. Thus, there is no delay in conducting the identification
  parade. There is nothing on record to show or prove that these
C accused were in illegal custody or confinement of the police.
  In order to prove this plea, they have produced four witnesses
  D1 to 04 but they could not bring any records or any other
  cogent or substantial evidence to prove the alleged case of
  illegal confinement and/or for that matter that they were shown
D to the witnesses before the identification parade was
  conducted by the investigating officer. Both the learned Trial
  Court as well as the High Court had disbelieved the witnesses
  of the defence in that regard.

E      13. Somewhat similar plea was taken in regard to
  identification, according to the accused they were shown to the
  witnesses while in custody and their photographs have been
  taken from their residence which in turn were also shown to the
  witnesses. This plea was rejected by the Court in a very recent
F judgment. After discussing the law in some detail in the case
  of Siddartha Vashisht @ Manu Sharma v. State (NCT of
  Delhi) [JT 2010 (4) SC 107], the Court held as under:

        "113. It is also contended by the defence that since the
        photographs were shown to the witnesses this
G       circumstance renders the whole evidence of identification
        in Court as inadmissible. For this, it was pointed out that
        photo identification or TIP before the Magistrate, are all
        aides in investigation and do not form substantive
        evidence. Substantive evidence is the evidence of the
H       witness in the court on oath, which can never be rendered
MAQBOOL@ ZUBIR@ SHAHNAWAZ AND ANR. v. 1019
   STATE OF A.P. [SWATANTER KUMAR, J.]

  inadmissible on this count. It is further pointed out that     A
  photo identification is not hit by 162 Cr.P.C. as adverted
  to by the defence as the photograph's have not been
  signed by the witnesses. In support of his argument the
  senior counsel for Manu Sharma relies on the judgment of
  Kartar Singh v. Union of India [(1994) 3 SCC 569] at           B
  page 711 wherein while dealing with Section 22 TADA the
  Court observed that photo TIP is bad in law. It is useful to
  mention that the said judgment has been distinguished in
  Umar Abdul Sakoor Sorathia v. Intelligence Officer,
  Narcotic Control Bureau, ((2000) 1 SCC 138] at page 143        C
  where a Photo Identification has been held to be valid. The
  relevant extract of the said judgment is as follows:-

  "10. The next circumstance highlighted by the learned
  counsel for the respondent is that a photo of the appellant
  was shown to Mr. Albert Mkhatshwa later and he identified      D
  that figure in the photo as the person whom he saw driving
  the car at the time of interception of the truck.

  11. It was contended that identification by photo is
  inadmissible is evidence and, therefore, the same cannot       E
  be used. No legal provision has been brought to our
  notice, which inhibits the admissibility of such evidence.
  However, learned counsel invited our attention to the
  observations of the Constitution Bench in Kartar Singh v.
  State of Punjab which struck down Section 22 of the
                                                                 F
  Terrorist and Disruptive Activities (Prevention) Act, 1987.
  By that provision the evidence of a witness regarding
  identification of a proclaimed offender in a terrorist case
  on the basis cf the photograph was given the same value
  as the evidence of a test identification parade. This Court
  observed in that contest: (SCC p. 711, para 361)               G

               361. If the evidence regarding the
               identification on the basis of a photograph is
               to be held to have the same value as the
               evidence of a test identification parade, we      H
    1020   SUPREME COURT REPORTS                   [2010) 7 S.C.R


A                    feel that gross injustice to the detriment of the
                     persons suspected may result. Therefore, we
                     are inclined to strike down this provision and
                     accordingly we strike down Section 22 of the
                     Act.
B      12. In the present case prosecution does not say that they
       would rest with the identification made by Mr. Mkhatshwa
       when the photograph was shown to him. Prosecution has
       to examine him as a witness in the court and he has to
       identify the accused in the court. Then alone it would
c      become substantive evidence. But that does not mean that
       at his stage the court is disabled from considering the
       prospect of such a witness correctly identifying the
       appellant during trial. In so considering the court can take
       into account the fact that during investigation the
D      photograph of the appellant was shown to the witness and
       he identified that person as the one whom he saw at the
       relevant time. It must be borne in mind that the appellant
       is not a proclaimed offender and we are not considering
       the eventuality in which he would be so proclaimed. So the
E      observationc; made in Kartar Singh in a different context
       is of no avail to the appellant."

              Even a Test Identification Parade before a
       Magistrate is otherwise, is hit by Section 162 of the Code.
       Therefore, to say that a photo identification is hit by section
F
       '162 is wrong. It is not a substantive piece of evidence. It
       is only by virtue of section 9 of the Evidence Act that the
       same i.e. the act of identification becomes admissible in
       Court. The logic behind TIP, which will include photo
       identification lies in the fact that it is only an aid to
G      investigation, where an accused is not known to the
       witnesses, the 10 conducts a TIP to ensure that he has got
       the right person as an accused. The practice is not born
       out of procedure, but out of prudence. At best it can be
       brought under Section 8 of the Evidence Act, as evidence
H
 MAQBOOL@ ZUBIR@ SHAHNAWAZ AND ANR. v. 1021
    STATE OF A.P. [SWATANTER KUMAR, J.]

     of conduct of a witness in photo identifying the accused in      A
     the presence of an 10 or the Magistrate, during the course
     of an investigation.

     14. In view of the clear statement of law, we have no
hesitatiori in rejecting the arguments of the appellant in relation   8
to conduct of the identification parade.

      15. In the statement under Section 313 Cr.P.C., the
accused took a plea of complete denial. According to them,
they were asked to come to the police station for interrogation
and then were produced in Court. They offered no explanations         C
and as already noticed, they even examined four witnesses in
support of their case. As already noticed, nothing material could
be established by these defence witnesses, specially, in regard
to the present two accused. However, accused had been
acquitted by the Court, as the prosecution could not produce          D
any cogent and material evidence except the diary and
therefore, the charge of conspiracy under Section 120-8 was
not proved against them. Vide Ext. P18 & Ext. P19 the accused
had been arrested and produced before the Court of competent
jurisdiction. The extract of diary which was recovered during the     E
investigation had various entries, which related to the planning
of the crime, its commission and result thereof. This aspect has
been discussed by the learned Trial Court in para 28 of its
judgment. The High Court has also examined this question in
some elaboration. The concurrent finding thus has been that           F
these extracts from the diary provide substantial support to the
case of the prosecution. On July, 1999 they had conspired and
after consultation in Sarbathi Canal Mosque, Bodhan that after
closing the show room the deceased goes on foot and nobody
is there on the road and that the work has to be done within 2-       G
3 days. These questions have been discussed by the trial court
as well as by the High Court in their correct perspective and
upon examination of the entire documentary and ocular
evidence; we do not find any reason to interfere in the
concurrent finding recorded by the Courts.
                                                                      H
    1022   SUPREME COURT REPORTS                 [2010] 7 S.C.~


A      16. We are of the considered view that the prosecution has
  been able to prove its case beyond reasonable doubt. The
  gravity of the offence, the manner in which it had been
  committed and the conduct of the accused do not call for any
  interference by this Court even on the question of quantum of
B sentence.

       17. For the manner in which the Investigating Officer (PW-
  25) had conducted the investigation requires much to be
  desired. We cannot also ignore the fact that he showed utter
  carelessness in not collecting the blood stained earth and
C empties and other material pieces of evidence, which were
  available at the place of occurrence. The occurrence had taken
  place late in night i.e. at 10.45 P.M. and hardly there would be
  such gathering. It was expected of the Investigating Officer to
  perform his duties with greater caution, sincerity and by taking
D recourse to appropriate scientific methods for investigating
  such a heinous crime. Thus we direct the Director General of
  Police, Andhra Pradesh to examine this aspect and take action
  in accordance with law.

E       18. Consequently, the appeal is without any merit and is
    hereby dismissed.

    D.G.                                      Appeal dismissed.