COMMON INTENTION, CIRCUMSTANTIAL EVIDENCE, LAST SEEN TOGETHER, RECOVERY IN A MURDER CASE

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.507 OF 2007

 

Shyamal Ghosh                                 ... Appellant

Versus

State of West Bengal                           ... Respondent

 

WITH

 

CRIMINAL APPEAL NO. 1369 OF 2007

AND

CRIMINAL APPEAL NOS. 539-540 OF 2011

 

J U D G M E N T

 

Swatanter Kumar, J.

 

1.    Eight accused, namely, Panchanan Tarafdar @ Chotka, Uttam Das,  Dipak

Das @ Mou, Manoranjan Debnath @ Behari, Bishu Saha @ Chor  Bishu,  Satyajit

Das @ Sadhu, Ganesh Das and Shyamal Ghosh, were charged with offences under

Sections 302, 201, 379, 411 read with Section 34 of the Indian Penal  Code, 1860 (for short, the ‘IPC’).  All these accused were found to be guilty  of the offences with which they were charged  by  the  Trial  Court  vide  its judgment dated 13th September, 2005.  After hearing them on the quantum  of sentence, vide order dated 14th September, 2005, finding the offence to  be that in the category of rarest of the rare cases, the Trial  Court  awarded sentence of death to all the accused persons for the offence under  Section 302 IPC and directed that they be  hanged  by  neck  till  they  are  dead, subject to confirmation by the Calcutta High Court.  For the offence  under Section 201 IPC, they were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5,000/- each, in  default  to further undergo simple imprisonment for one year and for the offence  under Section 379 IPC  to  undergo  imprisonment  of  three  years  and  fine  of Rs.1,000/- each in default to undergo six months simple imprisonment.

 

2.    Aggrieved by the judgment of conviction and order of sentence  passed

by the Trial Court, all the accused preferred five different appeals before the High Court and prayed for setting aside the judgment of the Trial Court and their consequential acquittal.  The High Court, vide its judgment dated 5th February, 2007, while answering the death reference  in  the  negative, acquitted all the accused persons of the offence  under  Section  379  read with Section 34 IPC.  However,  while  sustaining  their  conviction  under Section 302 read with Section 34  IPC,  the  Court  awarded  them  rigorous imprisonment for life and to pay a fine of Rs.5,000/- each  in  default  to undergo  rigorous  imprisonment  for  two  years  each.  The  High  Court maintained the sentence imposed upon the accused by the Trial  Court  under Section 201 read with Section 34 IPC.

 

3.    The legality and correctness of the judgment of the High Court  dated 5th February, 2007 has been challenged before this Court by accused Shyamal Ghosh in Criminal Appeal No.507 of 2007, Manoranjan  Debnath  @  Behari  in Criminal Appeal No.1369 of 2007 and Panchanan Tarafdar @ Chotka  and  Uttam Das in Criminal Appeal Nos.539-540 of 2011.

 

4.    Since all these appeals arise from a  common  judgment  of  the  High Court, it will be proper for this Court to deal with all these appeals in a common judgment.       At the very outset, we  may  notice  that  even  the contentions raised on behalf  of  different  accused  in  their  respective appeals are by and large the same.  Therefore, it will be proper  for  this Court to deal with all the appeals collectively, more  so,  when  they  are based upon common questions of facts and law.

 

5.    Now, we may refer to the case of the prosecution which  has  resulted in filing  of  the  present  appeals.   In  the  present  case,  the  First Information Report (FIR), Exhibit 12, was lodged at  P.S.  Khardah  on  1st October, 2003 by one Apu @ Sukalyan Mukherjee, PW15, wherein he stated that on 30th September, 2003 at around 10.00 p.m., he had seen  two  gunny  bags containing severed head and other mutilated body  parts  of  a  human  body opposite Tapan Santra’s garden near Dangadingla Electric Tower  at  Patulia Barabagan by the side of Barrakpore Dum Dum Highway.   Since  he  suspected some foul play, he reported the  matter  and  requested  for  investigation thereof in accordance with law.  On the basis of this information,  a  case being case No.332/03 under Sections 302/201/34 IPC was  registered  against unknown miscreants and the Investigating Officer, S.I. Bholanath Dey,  PW28 started the investigation and rushed to the spot where the said gunny  bags had been noticed.  He completed the inquest over the mutilated dead body in presence of the witnesses.  On  1st  October,  2003  itself,  wife  of  the deceased Smt. Lily Bhattarcharjee, PW4, and elder brother of the  deceased,

Arindam Bhattacharjee, PW6, came to the police station and  identified  the mutilated dead body to be that of Archideb Bhattacharjee who was stated  to

have been missing since 29th September, 2003.

 

6.    Further, the case of the prosecution reveals that on 29th  September, 2003, at about 9.00 p.m. the victim Archideb Bhattacharjee had started from his  house  on  his  Avon  bicycle  to  visit  one  Chandan  Dey  of  Ghola Gouranganagor for making tagada in connection  with  his  business  and  he started back therefrom at about 11.00 p.m. for returning to his home but on his way back, he was restrained by the accused persons near  Goshala  Field at about 11.30 p.m.  and  was  assaulted  by  them.   The  accused  persons strangulated him and ultimately he was murdered by them on the midnight  of 29th/30th September, 2003.  With the intention to  cause  disappearance  of evidence of the said murder, the accused persons subsequently  severed  the head, legs, hands and body of the corpse by  a  sharp  cutting  weapon  and after putting the same in gunny bags, carried it in a Maruti Van  at  about 9.00 p.m. on the following day i.e. 30th September, 2003 and left the  same at Pathulia Danga-dingla by the side of Barrackpore Dum  Dum  Highway  near the  Electric  Tower  and  in  front  of  the  garden  of   Tapan   Santra. Subsequently, as already noticed, at about 10.00 p.m. on that day these two sacks containing the dismembered and beheaded corpse were noticed  by  PW15 who then reported the matter to the Police.

7.    Since Archideb  Bhattacharjee  did  not  return  to  his  home  after visiting Chandan Dey on the night of 29th September,  2003,  his  wife  and elder brother had gone to the house of Chandan Dey at Ghola where they came to know that at about 11.00 p.m.  he  had  left  for  his  own  home  after collecting the money from him.  Having come to know of that fact, the  wife and brother of the deceased went to the Police Station and lodged a missing diary report being G.D. No.1163 dated 30th September, 2003  whereafter,  as already noticed, they were called to the Police Station for identifying the dead body of Archideb  Bhattarcharjee on  1st  October,  2003.   During  the course of investigation, it was also  revealed  that  before  the  date  of occurrence, the eight accused persons led by Uttam Das, Panchanan and Mou @ Dipak had demanded Rs.40,000/- from Archideb Bhattarcharjee  towards  ‘Tola Mastani Salami’ in relation to onstruction of six shop rooms  on  his  own land for letting the same.  Archideb had refused to succumb to this illegal demand.   The  accused  persons  had  then   threatened   him   with   dire consequences.  Archideb Bhattarcharjee was once called to the  premises  of  the local East Bengal Bayam Samiti Club also where he was threatened.   The accused persons had also visited the house of Archideb  several  times  for demanding money and, lastly, they had come to the house of Archideb on 27th September, 2003 and threatened that if their demand of Rs.40,000/- was  not fulfilled within one day, they would murder him.

 

8.    On 1st October, 2003, the driver of the Maruti Van, namely, Manik Das was arrested by the Police on the basis of a  telephonic  information  that dead body of the deceased was carried in the said Maruti  Van.   Manik  Das then made a statement to the Police and the Maruti  Van  was  recovered  on 13th October, 2003 from the car parking  place  of  Sushil  Chakraborty  at Kalitala Ghosh Para.  The said  Manik  Das  also  made  a  statement  under Section 164 of the Code of Criminal Procedure, 1973 (for short, the  ‘CrPC) before the Court of competent jurisdiction.  Accused Uttam Das, Dipak Das @ Mou and Manoranjan Debnath @ Behari, who were absconding  were  apprehended at Delhi with the help of the Police at Tilak Marg Police  Station.   These three accused persons were brought to Calcutta by the Investigating Officer and upon being produced before the Court on 16th October, 2003,  they  were remanded to police custody by the Court.  During their custody and at their statement, the Avon Cycle which was driven by the deceased,  was  recovered from an abandoned place near Agarpara Railway Station.   On  4th  November, 2003, accused Bishu Saha was arrested by the police from Highland,  Sodhpur and produced before the Court.  He was taken into custody.   Later on, even the other accused, namely, Shyamal Ghosh and  Satyajit  Das  were  arrested from Sodhpur.  However, despite its best efforts, the Police was  not  able to arrest accused Ganesh Das and Panchanan Tarafdar @ Chotka  and  declared them absconders.  Charge sheet against all other  six  accused  was  filed. However, at a subsequent stage, even the said two absconding  accused  were arrested by the Police and produced before the Court  and  they  also  were

charged with the same offences.

 

9.    Thus, all the accused were charged with the afore-stated offences and

subjected to face trial before the Court of competent jurisdiction.   After

evidence of the prosecution was closed, the incriminating material was  put

to the accused and their statements under Section 313 of the  Cr.P.C.  were

recorded.  As already noticed, thereafter, the accused  were  convicted  by

the Trial Court and upon appeal before the High Court, they were  acquitted

of the offence under Section 379 IPC but sentenced to life imprisonment for

the offence under Section 302 read  with  Section  34  IPC  and  were  also

sentenced for other offences, as indicated supra.

 

10.   It will be appropriate to refer to the contentions raised before this Court by the learned counsel appearing for the respective accused  persons.  The contentions are:

 

    i. The crucial witnesses of the prosecution, particularly  PW8,  Binode

       Mallick, PW17, Amal Ray and PW19, Kali Das have  not  named  accused

       Shyamal Ghosh.  Besides, these witnesses are not reliable and  their

       statements could not form the basis of  conviction  of  the  accused

       persons.  In fact, PW17, Amal Ray is a tutored witness as he was  in

       police custody for three days before his statement was recorded.

 

   ii. The present case being a case of circumstantial  evidence  does  not

       establish the complete chain of events so  as  to  substantiate  the

       conviction of the accused.

 

  iii. PW9, Haru Das, has not named any of the accused and the disposal  of

       the dead body which is a material circumstance has not  been  proved

       in accordance with law and, therefore, the conviction of the accused

       persons is ill-founded.

 

   iv. Accused Shyamal Ghosh was not identified in the test  identification

       parade and only accused Satyajit Das @  Sadhu’s  identity  could  be

       established.  As such, Shyamal  Ghosh  is  not  even  proved  to  be

       connected with the commission of the crime.

 

    v. The driver of the Maruti Van, Manik Das was  never  produced  before

       the Court for  cross-examination  and,  therefore,  statement  under

       Section 164 of the CrPC of the said witness is inconsequential.

 

   vi. The evidence against the accused is very weak and nothing  has  been

       recovered from the accused Shyamal Ghosh.  Since no specific role is

       attributable to Shyamal and  even  to  other  accused  persons,  the

       conviction under Section  302  read  with  Section  34  IPC  is  not

       sustainable, particularly against accused Shyamal.

 

  vii. There has been considerable delay, varying from 3 days to  20  days,

       in recording the statement of  the  prosecution  witnesses  and,  as

       such, the possibility of the witnesses not speaking the truth cannot

       be ruled out.  These witnesses were informed about what statement to

       make prior to recording of their respective statements.

 

 viii. PW8, Binode Mallick and PW19, Kali Das cannot be  believed  as  they

       are chance witnesses.  Statement of PW8 was recorded after  a  delay

       of 21 days.  He did not disclose the name of anyone.

 

   ix. Conduct of the prosecution witnesses including the family members of

       the deceased is abnormal.  No Police report  was  lodged  despite  a

       specific case of the prosecution that the accused persons  had  come

       to the house of the deceased on a number of occasions for  demanding

       money and had even threatened to murder the deceased.

 

    x. The fact that the prosecution has failed to establish  the  time  of

       death of the deceased would lead to one irresistible conclusion that

       the prosecution has not been  able  to  establish  its  case  beyond

       reasonable doubt.

 

   xi. The statement of the accused under Section 313 of the CrPC cannot be

       used against the accused.  Reliance by the courts  below  upon  such

       statement is, therefore, improper and illegal.

 

  xii. The recoveries effected from the accused persons, if any,  including

       even that from Manoranjan Debath @ Behari, are contrary to  law  and

       are, therefore, inadmissible.  In fact, the seizure memos  were  got

       signed on blank papers.

 

 xiii. There is no common intention and participation by  all  the  accused

       persons.  Resultantly, the ingredients of Section  34  IPC  are  not

       satisfied.

 

11.   While collectively responding to the above arguments raised on behalf

of the different accused persons, the learned  counsel  appearing  for  the

State contended that there existed a clear motive for committing the crime,

i.e., demand of money.

 

12.    The  present  case  is  not  a  case  of circumstantial evidence simpliciter.  According to the case of  the  prosecution,  there  are  eye-witnesses to different events that had taken place.   These  witnesses  are reliable  and  trustworthy.   They  are  neither  tutored  nor  stalked  or interested witnesses.  The background of the accused persons, their conduct in absconding immediately after the occurrence and statement of the accused under Section 313 CrPC fully support the case of the prosecution.  Even  if some witnesses had turned hostile or there existed certain minor defects in the  investigation,  the  accused  persons  cannot  derive  any   advantage therefrom.  According  to  the  learned  counsel,  defective  investigation normally would not prove fatal to the case  of  the  prosecution  and  even delay in examination of witnesses per se would not render  statement  of  a

witness unreliable.  Once the entire prosecution evidence  is  cumulatively

examined, the ingredients of Section 34 IPC are fully satisfied.

 

Prosecution Evidence

13.   Before we proceed to dwell  upon  the  merits  or  otherwise  of  the

contentions raised before us, it will be necessary for the Court to examine

the entire prosecution evidence at a glance.

 

14.   In the present case, the investigative machinery was set into  motion

by two different facts.  Firstly, Exhibit 15, which is  the  missing  diary

report lodged by the wife of  the  deceased  Lily  Bhattacharjee  PW4,  and

brother of the deceased Arindam Bhattacharjee, PW6 on 30th September,  2003

and secondly, the FIR, Ext. 12, lodged by PW15, Apu @ Sukalyan Mukherjee on

1st October, 2003.  No action appears to have  been  taken  on  the  former

while the Investigating Officer commenced his investigation on the basis of

the latter.

      According to PW15, on 30th September, 2003 at about 10.00 p.m. when he

went to the Electric  Tower  situated  at  Dangla  Disla  by  the  side  of

Barrackpore Dum Dum Express, Patulia Barabagan in front of garden of  Tapan

Santra he noticed two bags containing different parts of a human dead  body

upon which he informed the police and lodged a complaint at Khardah  Police

Station.  One Indrajit Sen had written the  complaint,  Exhibit  10,  which bore the signatures of PW15 at Exhibit 10/1.  If one looks at  the  content of Ext. 10, per se, it is not evident as to by whom and how the offence was committed. It is a settled principle of law that FIR is not  a  substantive piece of evidence.   However, during the course of investigation, the story leading to the commission of the crime got unfolded and pointed towards the guilt of the accused with certainty.

 

15.   According to PW4 and PW6, the deceased used to  earn  his  livelihood

through private tuitions and also used to  deal  in  clothing.   The  elder brother of the deceased was employed in a private firm and both of them had built six shop rooms on their own land in front of  the  house  where  they were residing, for the purpose of letting out.  Particularly  according  to PW4, Uttam Das, Mou @ Dipak Das, Chhotka @ Panchanan Tarafdar had  demanded Rs.40,000/- from her husband towards ‘Mastani Salami’.   The  deceased  had expressed his inability to pay the said amount.  Thereafter, Uttam Das, Mou and Chotka had called the deceased to the  club  premises  of  West  Bengal Bayan Samiti.  The deceased went there and agreed to pay a sum of Rs.2,000/-  which was not accepted by the accused and  they  threatened  the  deceased with dire consequences, if their demand of Rs.40,000/- was  not  satisfied. Uttam Das, Panchanan @ Chotka, Ganesh Sadhu, Shyamal Ghosh, Dipak Das  Chor Bishu, Manoranjan came to the house of the deceased two or three times  and threatened even her mother-in-law, the deceased and his brother  with  dire consequences if the demand was not fulfilled.  According to  this  witness, on 27th September, 2003, Uttam Das along with his associates  had  come  to their house and extended  a  similar  threat.   They  informed  about  this incident to political leaders, party officers and to the  people  and  were assured of proper help by them.   On  29th  of  September,  2003  at  about 9.p.m.,  the  deceased  went  to  the  house  of  Chandan  Dey   at   Ghola Gouranganagar by an Avon cycle to collect  money  in  connection  with  his

business.  He did not return at night.  Therefore, they went  to  Chandan’s house on the next morning and came to know that the deceased had come there in the night and after collecting money, he had returned therefrom on  that very day.  This resulted in lodging of the afore-noted missing diary report at the Ghola Police Station by PW6.  On 1st October, 2003, PW4 and PW6 both were called to the Police Station to identify the dead body which, as noted above, had been recovered as per the statement of PW15.  It may be  noticed that according to PW4 the deceased was wearing four rings,  HMT  watch  and was carrying cash and other papers with him on the night of 29th September, 2003.  After identifying the body at the Police Station, it was clear  that the accused persons had, after murdering the deceased, cut the body of  the deceased into pieces and packed the same in gunny bags with an intention to destroy the evidence.  PW4 and PW6 both  identified  the  apparels  of  the deceased as well as the accused persons in Court.  PW4 also stated that she had identified the accused persons even at the Police Station.

 

16.   Now, we have to examine the prosecution evidence as to the manner  in

which the occurrence took place and the statements of  the  witnesses  that are relevant for that purpose.  PW8, Binode Mallick, is stated to be an eye-witness to the assault caused by  the  accused  upon  the  deceased.   This witness stated that at the relevant time he was running a  tea  stall  near Sandhya Cinema Hall at Khardah and also supplied biscuits to the  shops  at Panchanantala Market and Bhanur More.  On 29th  September,  2003  at  about 12.00 a.m in the night, he was returning to his home from  Panchanan  Tala, after making tagada.  When he reached near Goshala Field he saw that Uttam, Chotka, Mou, Chorbisu, Sadhu and Ganesh were assaulting a fat person,  whom he knew as Archideb Bhattacharjee, by strangulating him with a  gumcha  and were taking the deceased towards Goshala Field.  He asked them  the  reason for the same and they told him to leave the place as it was their  internal matter.  The deceased was saying ‘save me save me’.   PW8  then  left  that place.  After two days he came to  know  that  the  said  person  had  been murdered and his body had been cut  into  pieces  and  was  left  near  the Kalyani Road Highway.  The witness identified the accused  persons  as  the ones who were doing the mischief on that night.  In his  cross-examination, he clearly denied the suggestion that he was deposing falsely  or  that  he had any friendship or intimacy with the accused persons.  The witness  also stated that he did not know the name of the deceased prior to the  date  of occurrence and, in fact, he came to know of the same  from  the  television after two days of the incident.  In his cross-examination, he  also  stated that about 10.45 p.m., he had reached Bhanur More and within 5-10  minutes, he reached Panchanan Tala Market and had spent nearly an hour at  Panchanan Tala Market for collecting money  from  the  said  shop  owners  and  after getting payment he started for his home.

17.   PW 17, Amal Ray, is another witness  to  the  altercation  that  took place between the deceased and  Uttam  Das  and  his  associates  including Shyamal,  Sadhu,  Bihari,  Ganesh,  Manoranjan,  Mou.   According  to  this witness, he had seen the altercation between them.  When  he  was  watching the incident, he was asked to leave the place by the accused persons, which he did and thereafter on the next day, he heard about the death of Archideb Bhattacharjee.  His statement was recorded by the Police three  days  after the incident.  This witness also identified the accused in the  Court.   In his cross-examination, he specifically denied the suggestion  that  he  had not witnessed the incident in question.

18.   The next witness whose statement has a direct bearing on this  aspect

is PW19, Kali Das, who is a resident of Nandan Kanan.  This witness  stated

before the Court that on 29th September, 2003 at about 11.30 p.m. while  he

was returning from Rashmoni More, he found that a Jhamela was going on near

Battalla of Nandan Kanan in between Archided and  Uttam,  Panchanan,  Bisu,

Bihari, Chotka, Mou and scuffling was going on  between  them.   Uttam  and

Bishu threatened him, therefore, he left the place.   Two  days  after  the incident,  he  learnt  about  the  recovery  of  body  parts  of   Archideb Bhattacharjee.  He also identified all the accused in the Court.  It  needs to be noticed that according to this witness, all the persons whom  he  had seen on that night were present in the Court and he identified them.

19.   In his statement, he had not specifically given the name  of  Shyamal  Ghosh and Ganesh.  In his cross-examination, he admitted that he was  taken into police custody at about 10 a.m. on the next date and was  released  by the Police after four days.  He admitted that he did not give the names  of the accused persons’ father to the police.  He further stated that  he  had not gone to the Police Station on 29th September, 2003 to report about  the Jhamela.  Moreover, the Investigating Officer in his statement as PW28  had stated that on 1st October, 2003, he had examined Arindam Bhattacharjee  at Police Station and he had also examined various relations of the  deceased. He denied that Amal Ray, PW17 was in custody.  In fact,  according  to  him when he was going on his way to meet Amal Ray, he had the occasion to  meet him and had examined him but did not bring him to the Police Station.

20.   This is the direct evidence in relation to the altercation  (Jhamela)

between the accused and the deceased and the  subsequent  strangulation  of

the deceased. The necessary inference that follows is that on  the  day  of the incident, the deceased was killed and his  body  was  disposed  of,  as stated by the prosecution witness noted above, by  cutting  the  same  into pieces, putting it in gunny bags and abandoning these bags  at  a  deserted place.

21.   The next circumstance in the chain of events is the evidence relating to dismembering of the corpse and its disposal by the accused persons.  Let us examine that evidence now.

22.   PW7, Prakash Chowdhury, is a witness to this incident.  According  to

him, on 30th September, 2003, at about 9.00 p.m.  he  was  returning  along

Goshala field Bhanur More  after  making  tagada  in  connection  with  his

business.  While returning, he found Uttam and Mou standing by the side  of

a Maruti Van and then Sadhu, Chotka, Chorbisu, Shyamal and Manoranjan  were taking inside the said steel coloured Maruti Van, parts of human dead  body contained in gunny bags.  He identified the accused persons in  the  court.

He further stated that his statement was recorded by the Police, 20  to  22

days after the date of the incident.  In  his  cross  examination,  certain doubts were created about  the  manner  in  which  he  was  conducting  his business, i.e., sale and distribution of electric bulbs.

 

23.   PW9, Haru Das, is a rickshaw puller and he parks his rickshaw at  the

Rickshaw stand at Bhanuthakures More.  According to him, two days prior  to

the day of Durga Pooja nearly two years back, when he was  sitting  at  the

rickshaw stand, he saw that  a  steel  coloured  Maruti  Van  stopped  near Goshala field and four-five bags containing parts  of  a  human  body  were

being loaded in the Maruti Van from the side of Goshala  field  by  accused

Uttam, Mou, Chotka, Bisu, Ganesh and Bihari.  All the accused  persons  who

were present in the Court were identified by this  witness.   According  to this witness, the accused persons used to travel in his rickshaw  and  paid the exact fair.  After putting the body into the van,  the  van  went  away towards Rashmoni More.  The witness specifically stated that  subsequently, he was threatened by Uttam Das and his associates  by  saying  that  if  he disclosed anything to anybody, his family would be destroyed.  This witness was subjected to a lengthy cross-examination but nothing material came  out in the cross examination.

 

24.   PW-11, Someraw Orang is another rickshaw puller.   He stated  that  he

along  with  Tarapada  Sahadeb  and  Haru  was  at  the  Rickshaw  stand  of

Bhanuthakur More.   According to him, a Maruti car  had  stopped  there  and

Uttam and Mou were standing by  the  side  of  the  car  and  Chotka,  Bisu,

Manoranjan and Ganesh, were loading the bags containing the bloody parts  of

human body into the said car from Goshala field.   Thereafter, the car  went

towards Rashmoni More with the accused  persons.    He  identified  all  the

accused persons present in the Court.   He stated that he knew  the  accused

persons for long.   He came to know of the murder 20-22 days after the  date of incident.   In his cross-examination, he stated that he  could  not  tell the number of the Maruti car and he  had  not  seen  that  car  again.    He denied that he had been  tutored  by  the  Police  and  he  was  making  the statement under the influence of the police.   He admitted that  he  carried liquor in his rickshaw, as a government liquor shop was situated at  Sodhpur and he went there, and sometimes he also drank liquor.

 

25.   According to the  prosecution, the statements of  these witnesses completely establish that the deceased was last seen with  the  accused  and they were responsible for assaulting and strangulating  him  and  they  were also witnessed loading the parts of the human  dead  body  into  the  Maruti van.   Resultantly, as per the prosecution,  both  the  vital  circumstances i.e. commission of murder as well as disposal of the body  of  the  deceased have been proved.

 

26.   PW-2 Jhantu Dey, the brother-in-law of the deceased also  appeared  as

a witness and stated that his brother-in-law had built  six  shop  rooms  on their land which was near to his  house.  On  15th  August,  2003,  Uttam, Manoranjan, Ganesh Dipak Das, Shyamal, Chotka, Bisu and Sadhu  demanded  Rs. 40,000/- from the deceased but the deceased refused.  Then Uttam  threatened that if the said money was not paid he would not  allow  Archideb  to  enjoy and use the said property.   PW-2 is also a witness to the recovery  of  the chopper which was recovered on the statement of accused  Bishu  who  brought out the chopper from the bush in the field and admitted that  they  had  cut the body of the deceased with the chopper.  PW-2 proved  his  signatures  on the Seizure List Ext. 1/1 and also identified in the Court the  persons  who had threatened the deceased.

 

27.   PW1 Sunil Chakraborty and PW3 Mritunjoy Chanda were also witnesses  to

the recovery of the Chopper and  the  corresponding  seizure  memo,  Exhibit 1/3.  PW1 had signed  the  seizure  memo  and  admitted  his  signatures  as Exhibit 1.  The signatures of PW3 were  admitted  by  him  at  Exhibit  1/2. Both these witnesses identified the accused persons present  in  the  Court. The Maruti Van, Exhibit 13/2 was recovered in presence of PW23,  PW24,  PW25 and PW26.   Further, the Avon cycle was recovered in presence  of  PW21  and PW22.  PW21 stated that a cycle  was  seized  from  a  place  near  Agarpara Railway Station under the seizure list and it was recovered at the  instance  of three persons who led the police to the place of recovery.   He  admitted his signatures as Exhibit 4/1.  The cycle was exhibited as Mat. Exhibit  II.  The signatures on the seizure memo attached to the cycle were exhibited  as Exhibit 5/1.

 

28.   These are the recoveries of the weapon  of  offence  as  well  as  the

vehicle which was used by the accused persons  for  carrying  the  mutilated

body parts of the deceased person.    Further, the  recovery  of  the  cycle

that was owned by the deceased provides a definite link as it was  recovered

in furtherance to the statement of the accused,  namely,  Uttam  Das,  Dipak

Das and Manoranjan Debnath.  The recoveries affected  by  the  Investigating

Officer, PW28 can hardly be questioned in fact and in law.

29.   Now, let us examine the evidence of the doctor who conducted the  post

mortem on the body of  the  deceased.   Dr.  Jnanprokash  Bandhopadhyay  was

examined as PW16.  According to this witness, he  was  the  medical  officer

attached to R.G. Kar Medical College and Hospital.  On  1st  October,  2003,

he was posted at Barrackpore  Police  base  hospital.    He  performed  post

mortem on the dead body of one Archideb Bhattacharjee, as identified by  the

Constable who had brought the body of the deceased.  In fact, some parts  of

the human body had been sent for post  mortem.   He  examined  the  injuries

inflicted upon the deceased’s body and connected each injury  to  the  organ

that had been severed from the body.  He opined  that  all  the  body  parts

were of a single person.  The injuries showed evidence of ante mortem  vital

reaction.  The cause  of  death  was  due  to  effect  of  strangulation  by

ligature.  He prepared  the  post-mortem  report  as  Exhibit  11  with  his

signature as Exhibit 11/1.  It will be useful to refer to  certain  part  of

the statement of this witness that reads as under :

           “On that date I  held  post-mortem  on  the  dead  body  of  one

           Archideb   Bhattacharjee   identified   by   constable   No.4260

           Brojogopal Ghosh in connection with Khardah P.S. U.D. Case No.89

           dated 01.01.2003 and Khardah  P.S.  Case  No.332  under  Section

           302/201/34  Indian  Penal  Code  dated   01.10.2003.    Actually

           following parts of the dead body were sent for post-mortem.   1.

           One decapitated head. 2. One beheaded body with P.M.  amputation

           of both arms, left leg from hip and right leg from knew. 3.  One

           left arm.  4. One right arm.  5. One left leg from knew.  6. One

           right leg from knew 7. One left thigh, all parts  were  arranged

           in anatomical order.  The body parts were in state  of  moderate

           decompositions with bloating body  feature.   On  examination  I

           found flowing post-mortem injuries.

           1. Incised chop would  (I.C.W)  placed  transversely  over  neck

              adjacent to hiad.  2. Winch below symphysis menti  and  along

              with nape of the neck  at  the  level  between  c.2  and  c-3

              vertebrae measuring 6.8” x 6.3” x through and through all the

              structure of the neck.  2. I.C.W., placed over neck  adjacent

              to 4.4” above sterna notch placed transversely at the  (torn)

              between C-2 and C-3 vertgorae measuring 6.8” x 6.3” x through

              and through all the structure of the neck.

           Injury No.1 and 2 fitted anatomically  and  snugly.   3.  I.C.W.

           6.2” x 4.3” x 2.2 all the structures and shoulder  joint  cavity

           over right shoulder.  4.  I.C.W.  6.2”  X  4.7”  X  through  and

           through all the structures and shoulder joint cavity over  upper

           end of right arm.

           Injury No. 3 and 4 fitted anatomically and snugly.   5.  I.C.W.,

           5.9” X 4.7” through and  through  all  the  structures  all  the

           shoulder joint cavity over left shoulder.  No.6  I.C.W.  5.8”  X

           4.6” X through and through all the structures and shoulder joint

           cavity over upper and of left arum.

           Injury No.5 and 6 filled anatomically and snugly.   No.7  I.C.W.

           over left hip 8.5 “8” X through and through  all  the  structure

           and left hop joint cavity.  8. I.C.W. 8.4” X 8”  X  through  and

           through all the structure and left hip joint cavity  over  upper

           and of left thigh.  Injury No.7 an  8  fitted  anatomically  and

           snugly.  9.  I.C.W. left knew joint towards thigh 5.8” X 5.5”  X

           through and through  all  the  structure  and  left  knee  joint

           cavity10.  I.C.W. left knee joint towards  leg  5.8”  X  5.5”  X

           through and through  all  the  structure  and  left  knee  joint

           cavity.  Injury No.9 and 10 fitted anatomically and snugly.  11.

           I.C.W. right knee towards  thigh  5.6”  X  5.5”  X  through  and

           through all the structure and  right  knee  joint  cavity.   12.

           I.C.W. right knee towards leg 5.6” X 5.5” X through and  through

           all the structure and right  knee  joint  cavity.   12.   Injury

           No.11 and 12 fitted anatomically  and  snugly.   N  13.  Incised

           wound 3” X 0.8” X muscle over right side of check and lower lip.

            No.14. I.C.W. 3.5” X 0.7” X  muscle  placed  transversely  over

           right side of back of knee at the level of tip of right  mastoid

           process.  15. Lacerated wound 3.” X 1.2” X muscle  over  left  4

           and 5 intercostals space 5.6” from interior  midland.   All  the

           injuries mentioned should  no  evidence  of  Ante  mortem  vital

           reaction. All the body parts were of  a  single  persons.   Ante

           mortem injury No.1 one continuous ligature one (LM) 12”  X  1.4”

           completely encircling the neck was placed transversely low  down

           around the neck adjacent to the body 1.6” above sterna notch and

           1.8” above tip of C-7 spinal process.  The area over the LM  was

           less decomposed then the rest of the body and skin over the L.M.

           was brownish.  On dissection extensive extra vacation  of  blood

           is noted in the S.C. tissue and muscle of  neck.   Bruising  was

           also noted in and around the trached  cartilages  with  fracture

           and displacement  of  thyroid  cartilages  and  tracheal  rings.

           No.2. Abrasion 1.5”  X  0.8”  over  left  malar  prominent  No.4

           Abrasion over right anterion superior iliac spine measuring 0.8”

           X 0.6”.  No.5 Bruise 4.8” X 2.5” over  back  of  left  arm  2.5”

           above left elbow joint.   6. Bruise 2.6” X 2” over ulnar  aspect

           of righ wrist.  7. Haematoma scalp 3.5” X  2”  X  appromie  0.2”

           over left fronto parietal region the  1.6”  from  midline.   The

           injures showed evidence of ante mortem vital reaction.

 

           In my opinion death was due to the effects of  strangulation  by

           ligature, as noted above – ante mortem and homicidal in nature.

 

           This is the  report  of  post-mortem  prepared  by  me  with  my

           handwriting.  It bears my signature and seal.   This  report  of

           post-mortem is marked as Ext.11 the signature is marked  s  Ext.

           11/1.

 

           The post-mortem injuries mentioned above may be caused  by  this

           type of moderately heavy sharp cutting.”

 

30.   The Investigating Officer was examined as PW28.   Upon  receiving  the

information from PW15, he was entrusted with the investigation of the  case.

 According to this witness, when he  reached  the  spot,  he  found  that  a

beheaded dead body whose hands and legs were separated,  was  lying  by  the

left side of the Barrackpore Dum Dum Highway.  He conducted the  inquest  at

the spot and prepared the Inquest Report Exhibit 3/4. He  seized  the  gunny

bags containing mutilated parts of  the  body  of  the  deceased.   He  also

recovered an empty blood stained gumcha and other articles vide Exhibit  16.

 On 1st October, 2003, he conducted a raid in the area of  Nandan  Kanan  in

search of accused Uttam Das,  Mou  and  Manoranjan  Debnath  but  could  not

apprehend them.  He recorded  the  statements  of  various  witnesses.   The

mutilated body parts were sent to the Police  hospital.   On  11th  October,

2003, he along with the force started for Delhi with production warrant  and

thereupon he arrested three accused.  He recovered the Avon  bicycle,  while

the Maruti Van was recovered by  SI,  Anjan  De,  PW26,  who  had  taken  up

investigation of  the  case  under  instructions  of  I.C.  Khardah,  during

temporary absence of PW28.  Thereafter, according to this witness,  he  held

raids in search of the associate accused but they could not be traced.  PW28

prayed for issuance of WA and WPA against Chotka @ Panchanan Tarafdar,  Chor

Bisu @ Bisu Bisu @ Datta  @ Das, Sadhu @ Satyajit  Das,  Shyamal  Ghosh  and

Ganesh Das.  The same were allowed.  On 9th November, 2003, he held raid  at

Nandan Kanan and  surrounding  area  but  could  not  trace  the  absconding

accused.  On 21st November, 2003, he apprehended accused Shyamal  Ghosh  and Sadhu @ Satyajit Das from Sodhpur.  He also took  into  custody  photographs

along with negatives thereof from photographer Ashok  Sen  on  7th  October,

2003 and prepared seizure list marked as Exhibit 7/1.  Thereafter  he  filed

the charge sheet.

 

31.   Another witness of some significance is PW10, Chota Orang  who  stated

that about one and a half years back, a part of a  dead  body  severed  from

its head, hands and legs was  left  in  front  of  his  house  near  Kalyani Highway Road by someone.  The Police had come to the place  and  prepared  a report.  He had put  his  signatures  on  the  said  report  which  he  duly accepted in Court as Exhibit 3/1.

 

32.    This  is  the  evidence  that  completes  the  chain  of  events  and establishes the case of the prosecution beyond any  reasonable  doubt.   The

facts, right from the departure of the deceased from his house to the  place

of Chandan Dey to recover money upto the recovery of mutilated body  of  the

deceased, have been proved  by  different  witnesses,  including  some  eye-

witnesses.

33.   It was contended that some of the witnesses  had  turned  hostile  and

have not supported the case of the prosecution. In  this  regard,  reference

has been made to PW13 and PW23.   PW13  admitted  that  he  was  a  rickshaw

puller of rickshaw No. 4. He also stated that he was  not  examined  by  the

police. It was at that stage that the learned prosecutor  sought  permission

of the Court to declare him hostile, which leave was granted by  the  Court.

This witness stated that there were 10 rikshaw pullers at Nandan  Kanan  and

he used to park his rikshaw from 7.00 a.m. to  10.00  a.m.  at  that  stand,

while in the afternoon, he used to park his rikshaw at the  Sodhpur  Railway

Station.   He denied having seen the accused persons loading the gunny  bags

into the Maruti Van and also receded  completely  from  his  statement  made

under Section 161 of the CrPC.  The other witness is PW23 who was a  witness

to the recovery of the Maruti Van.  According to this  witness,  the  Maruti

Van was parked in his parking lot.  However, on 30th  November,  2003  Manik

Das had taken out the vehicle from the parking and  again  returned  at  mid

night.  With regard to his signature on the seizure memo which  he  accepted

as Exhibit 13, he took up the plea that he was made to sign blank papers.

 

      The mere fact that these two witnesses had turned  hostile  would  not

affect the case of the  prosecution  adversely.   Firstly,  it  is  for  the

reason that the facts that these  witnesses  were  to  prove  already  stand

fully proved by other prosecution witnesses and  those  witnesses  have  not

turned  hostile,  instead  they  have  fully  supported  the  case  of   the

prosecution.  As per the version of the prosecution,  PW23  was  witness  to

the recovery of the Maruti Van along with PW24, PW25 and  PW26.   All  those

witnesses have proved the said recovery in accordance with law.   They  have

clearly stated that it was upon the statement of Manik Das that the  vehicle

had been recovered.  Other witnesses have proved that the said  vehicle  was

used for carrying the gunny bags containing the mutilated parts of the  dead

body of the deceased.  Firstly, PW13 is a witness who  was  at  the  railway

station rickshaw stand along with other two witnesses namely  PW9  and  PW11

who have fully proved the fact as eye-witnesses to the loading of the  gunny

bags into the Maruti van.  Secondly, even the  version  given  by  PW13  and

PW23 partially supports the case of the  prosecution,  though  in  bits  and

pieces.  For example, PW23 has stated that the driver of the Maruti Van  was

Manik Das and also that he had taken out the vehicle from  the  parking  lot

at about 9.30 p.m. on the day of the incident and had brought it back  after

mid-night.  He also stated that this car was  being  driven  by  Manik  Das.

Similarly, PW13 also admitted that other  rickshaws  were  standing  at  the

stand.   This was the place where PW9 and PW11 had seen the loading  of  the

gunny bags into the Maruti Van.  In other  words,  even  the  statements  of

witnesses PW13 and PW23, who had turned hostile,  have  partially  supported

the case of the  prosecution.   It  is  a  settled  principle  of  law  that

statement of a hostile witness can also be relied upon by the Court  to  the

extent it supports the case of the prosecution.  Reference  in  this  regard

can be made to the case of Govindaraju @ Govinda v.  State  by  Sriramapuram

P.S. & Anr. [(2012) 4 SCC 722].

34.    Then,  it  was  argued  that  there  are  certain  discrepancies  and

contradictions in the statement of the prosecution witnesses in as  much  as

these witnesses have given different timing as to when  they  had  seen  the

scuffling and strangulation of the deceased by  the  accused.   It  is  true

that there is some variation in the timing given  by  PW8,  PW17  and  PW19.

Similarly, there is some variation in the statement of PW7,  PW9  and  PW11.

Certain variations are also pointed out in the statements of  PW2,  PW4  and

PW6  as  to  the  motive  of  the  accused  for  commission  of  the  crime.

Undoubtedly, some minor discrepancies or variations  are  traceable  in  the

statements of these witnesses.  But what the Court has  to  see  is  whether

these variations are  material  and  affect  the  case  of  the  prosecution

substantially.  Every variation may not be enough to  adversely  affect  the

case of the prosecution.  The variations pointed out as regards the time  of

commission of the crime are quite possible  in  the  facts  of  the  present

case.  Firstly, these witnesses are rickshaw pullers or  illiterate  or  not highly educated persons whose statements had been recorded  by  the  Police.

Their statements in the Court were recorded after more than two  years  from

the date of the incident.  It will be unreasonable to attach motive  to  the

witnesses or term the variations  of  15-20  minutes  in  the  timing  of  a

particular event, as a material contradiction.  It probably may not even  be

expected of these witnesses to state these events with the  relevant  timing

with great exactitude, in  view  of  the  attendant  circumstances  and  the

manner in which the incident took place.  To illustrate the  irrelevancy  of

these so  called  variations  or  contradictions,  one  can  deal  with  the

statements of PW2, PW4 and PW6.  PW4 and PW6 have stated that  the  deceased had constructed shops along with his brother for the purpose of letting  out and it was thereupon that the accused persons started  demanding  a  sum  of

Rs.40,000/- from the deceased and had threatened him of  dire  consequences,

if their demand was not  satisfied.   PW2  has  made  a  similar  statement.

However,  he  has  stated  that  Uttam  Das  and  the  accused  persons  had

threatened the deceased that if the said money was not paid, they would  not

allow the deceased to enjoy and use the said shops built by him.   This  can

hardly be stated to be a contradiction much less a  material  contradiction.

According to the witnesses, two kinds of dire consequences  were  stated  to

follow, if the demand for payment of money  made  by  the  accused  was  not

satisfied.   According to PW4 and PW6,  they  had  threatened  to  kill  the

deceased while according to PW2, the accused had threatened that they  would

not permit the accused to enjoy the said property.  Statements of all  these

witnesses clearly show one motive, i.e., illegal  demand  of  money  coupled

with the warning of dire consequences to the deceased in  case  of  default.

In our view, this is not a contradiction but are statements made  bona  fide

with reference to the conduct of the accused in  relation  to  the  property

built by the deceased and his brother.  It is a  settled  principle  of  law

that the Court should examine the statement of a  witness  in  its  entirety

and read the said statement along with the statement of other  witnesses  in

order to arrive at a rational conclusion.  No statement of a witness can  be

read in part and/or in isolation.  We are unable  to  see  any  material  or

serious contradiction in the statement of these  witnesses  which  may  give

any advantage to the accused.

35.   The learned counsel appearing for the appellants contended  that  PW2,

PW4 and PW6 are interested witnesses as they  are  close  relations  of  the

deceased person.  Further it is contended that the statements of  PW8,  PW17

and PW19 had been recorded after considerable delay, varying from  3  to  22

days and for these reasons the case of the prosecution suffers  from  patent

lacuna and defects.  This evidence,  therefore,  could  not  be  taken  into

consideration by the Court to convict the accused.   On  the  contrary,  the

accused are entitled to acquittal for  these  reasons.   Reliance  has  been

placed upon State of Orissa v. Brahmananda Nanda  [(1976)  4  SCC  288]  and

Maruti Rama Naik v. State of Maharashtra [(2003) 10 SCC 670].

36.   On the contra, the submission on behalf  of  the  State  is  that  the delay has been explained and though the  Investigating  Officer  was  cross-examined at length, not even a suggestion was put to him as  to  the  reason for such delay and, thus, the accused cannot take  any  benefit  thereof  at this stage.  Reliance in this regard on behalf of the  State  is  placed  on Brathi alias Sukhdev Singh v. State of  Punjab  [(1991)  1  SCC  519]  Banti alias Guddu v. State of M.P. [(2004) 1 SCC 414] and State of U.P. v.  Satish [(2005) 3 SCC 114].

 37.   These are the issues which are no more res  integra.   The  consistent

view of this Court has been that if the explanation offered for the  delayed

examination of a particular witness is  plausible  and  acceptable  and  the

Court accepts the same as plausible, there is no reason  to  interfere  with

the conclusion arrived at by the Courts.  This is the view expressed in  the

case of Banti (supra).  Furthermore, this Court  has  also  taken  the  view

that no doubt when the  Court  has  to  appreciate  evidence  given  by  the

witnesses who are closely related  to  the  deceased,  it  has  to  be  very

careful in evaluating such evidence but  the  mechanical  rejection  of  the

evidence on the sole ground that it is that of an interested  witness  would

inevitably relate to failure of justice [Brathi (supra)].  In  the  case  of Satish (supra), this Court further held  that  the  explanation  offered  by Investigating  Officer  on  being  questioned  on  the  aspect  of   delayed examination by the accused has to be tested by the Court on  the  touchstone of credibility. It may not  have  any  effect  on  the  credibility  of  the prosecution evidence tendered by other witnesses.

38.   The delay in examination of witnesses is a variable factor.  It  would

depend upon a number of circumstances.   For  example,  non-availability  of

witnesses, the Investigating Officer being pre-occupied in serious  matters,

the Investigating Officer spending his time in  arresting  the  accused  who

are absconding, being occupied in other  spheres  of  investigation  of  the

same case which may require his attention  urgently  and  importantly,  etc.

In the present case, it has come in evidence that the accused  persons  were

absconding and the Investigating Officer had  to  make  serious  effort  and

even go to various places for arresting the accused, including  coming  from

West Bengal to Delhi.  The Investigating Officer  has  specifically  stated, that too voluntarily, that he  had  attempted  raiding  the  houses  of  the accused even after cornering the area, but of  no  avail.   He  had  ensured that the mutilated body parts of the deceased reached the hospital and  also effected recovery of various items at the behest of  the  arrested  accused. Furthermore,  the  witnesses  whose  statements  were  recorded   themselves belonged to the poor strata, who must be moving from one  place  to  another to earn their livelihood.  The statement of  the  available  witnesses  like PW2, PW4, PW6, and the doctor, PW16,  another  material  witness,  had  been recorded at the earliest. The Investigating Officer recorded the  statements of nearly 28 witnesses.  Some delay was bound  to  occur  in  recording  the  statements of  the  witnesses  whose  names  came  to  light  after  certain investigation had been carried out by the  Investigating  Officer.   In  the present case, the examination of the interested  witnesses  was  inevitable. They were the persons who  had  knowledge  of  the  threat  that  was  being extended to the deceased by the accused persons.   Unless  their  statements were recorded, the investigating officer could not have proceeded  with  the investigation any further, particularly keeping the  facts  of  the  present case in mind.  Merely because three witnesses were related to the  deceased, the other witnesses, not similarly placed, would not attract  any  suspicion of the court on the credibility and worthiness of their statements.

39.   Some emphasis has been placed by the  learned  counsel  appearing  for

the appellants upon some patent defects in  the  prosecution  case  and  the

abnormal conduct of the prosecution witnesses.  According  to  the  counsel,

it is very unnatural that related witnesses like PW2, PW4 and  PW6  had  not

informed the police when they lodged  the  missing  diary  report  with  the Police Station that there was demand for money by the accused and that  they had threatened the deceased with dire consequences if that  demand  was  not

satisfied.  Furthermore, it is pointed out that  nothing  was  sent  by  the

Investigating Officer to the Forensic Science Laboratory  (FSL)  to  provide

any scientific link to the commission of the  offence  or  corroboration  of

the case of the prosecution.  The contention  is  that  these  are  material

defects and should normally result in acquittal of the accused.

40.   We are not  impressed  by  this  contention  of  the  learned  counsel

appearing for the appellants.   We  have  already  noticed  above  that  the

question of disbelieving the interested witnesses  (family  members  of  the

deceased) does not arise.  Their statements are  reliable  and  trustworthy.

The fact that they did not inform  the  Police  while  lodging  the  missing

diary report about the illegal demand for money by the accused  persons  and

that the accused had also threatened the deceased  with  dire  consequences,

is not a material omission.  All the family members  must  have  been  under

great mental stress as their husband/brother had not returned  home.  It  is

also not factually correct to say that nothing of this  kind  was  mentioned by these related witnesses to the police at any  stage.   The  Investigating Officer, PW28, had specifically stated in his statement “Jhantu  Dey  stated to me that on 15.8.03 Uttam Das,  Dipak  Das,  Manoranjan  Debnath,  Ganesh, Chotka, Chor  Bisu,  Shyamal,  Sadhu,  demanded  Rs.40,000/-  from  Archideb Bhattacharjee in his presence”.  Of course, there are certain  discrepancies in the investigation inasmuch as the Investigating Officer  failed  to  send the blood stained gunny bags and other recovered  weapons  to  the  FSL,  to take photographs of the shops in question, prepare the  site  plan  thereof, etc.   Every discrepancy in investigation does not weigh with the  Court  to an extent that it necessarily results in acquittal of  the  accused.   These are the discrepancies/lapses of immaterial consequence.  In fact,  there  is no serious dispute in the present case to the fact  that  the  deceased  had constructed shops on his own  land.   These  shops  were  not  the  site  of occurrence, but merely constituted a  relatable  fact.   Non-preparation  of the site plan or not sending the gunny bags to the FSL cannot be said to  be fatal to the case of prosecution in the circumstances of the  present  case. Of course, it would certainly have been better for the prosecution  case  if

such steps were taken by the Investigating  Officer.   In  C.  Muniappan  v. State of Tamil Nadu [(2010) 9 SCC 567], this Court has  clearly  stated  the principle that the law on this issue is well settled that the defect in  the investigation by itself cannot be a ground for  acquittal.   If  primacy  is given to such designed or negligent investigations or to  the  omissions  or lapses by perfunctory investigation, the faith and confidence of the  people in the criminal justice administration would be eroded.   Similar  view  was taken by this Court in the case of Sheo Shankar Singh v. State of  Jharkhand and Another [(2011) 3 SCC 654] wherein the Court held that  failure  of  the investigating agency to hold a test identification parade does not, in  that view, have the effect of weakening the evidence  of  identification  in  the Court.  As to what should be the weight attached to such  an  identification is a matter which the court  would  determine  in  the  peculiar  facts  and circumstances of each case.  Similarly, failure to  make  reference  to  the FSL in the circumstances of the case is no more than  a deficiency  in  the investigation of the case and such deficiency does not necessarily  lead  to a conclusion that the prosecution case is totally unworthy of credit.

41.   As we are discussing the conduct of the prosecution witnesses,  it  is

important for the Court to notice the conduct  of  the  accused  also.   The

accused  persons  were  absconding  immediately  after  the  date   of   the

occurrence and could not be arrested despite various  raids  by  the  police

authorities.  The Investigating Officer  had  to  go  to  different  places, i.e., Sodhpur and Delhi to arrest the accused  persons.   It  is  true  that merely being away  from  his  residence  having  an  apprehension  of  being apprehended by the police is not a very unnatural  conduct  of  an  accused, so as to be looked upon as absconding per se where the court would  draw  an adverse inference.  Paramjeet Singh v. State of Uttarakhand [(2010)  10  SCC 439] is the judgment relied upon by the learned counsel  appearing  for  the appellant.  But we cannot overlook the fact that the present case is  not  a case where the accused were innocent and had a reasonable excuse  for  being away from their normal place of residence.   In  fact,  they  had  left  the village and were not available for days  together.   Absconding  in  such  a manner and for such a long period is a relevant consideration.  Even  if  we assume that  absconding  by  itself  may  not  be  a  positive  circumstance consistent only with the hypothesis of guilt of the accused  because  it  is not unknown that even innocent persons  may  run  away  for  fear  of  being falsely involved in criminal cases, but in the present case, in view of  the

circumstances which we have discussed in this judgment and which  have  been

established by the prosecution, it is clear that absconding of  the  accused

not only goes with the hypothesis of guilt of the accused but also points  a

definite finger towards them.  This Court in the case of Rabindra Kumar  Pal

@ Dara Singh v. Republic of India [(2011) 2 SCC 490], held as under :

           “88. The other circumstance urged by the prosecution was that A-

           3 absconded soon after the incident and avoided arrest and  this

           abscondence being a conduct under Section 8 of the Evidence Act,

           1872  should  be  taken  into  consideration  along  with  other

           evidence to prove his guilt. The fact remains that  he  was  not

           available for quite some time till he was  arrested  which  fact

           has not been disputed by the defence counsel. We  are  satisfied

           that before accepting the contents of the two  letters  and  the

           evidence of PW 23, the trial Judge  afforded  him  the  required

           opportunity  and  followed  the  procedure  which  was   rightly

           accepted by the High Court.”

42.   Then it was also contended that  circumstantial  evidence  is  a  very

weak evidence and in the present case, the complete chain  having  not  been

established, the accused are entitled to  acquittal.   This  argument  again

does not impress us.  Firstly, we have discussed in some details  that  this

is not purely a case of circumstantial evidence.   There  are  eye-witnesses

who had seen the scuffling between the deceased  and  the  accused  and  the

strangulation of the deceased by the accused persons and  also  the  loading

of the mutilated body parts of the deceased contained  in  gunny  bags  into

Maruti Van.  Evidence establishing the ‘last seen together’ theory  and  the

fact that after altercation and strangulation  of  the  deceased  which  was

witnessed by PW8, PW17 and PW19, the body of the deceased was  recovered  in

pieces in presence of the witnesses, have  been  fully  established.   To  a very limited extent, it  is  a  case  of  circumstantial  evidence  and  the prosecution has proved the complete chain of events.  The  gap  between  the time when the accused persons were last  seen  with  the  deceased  and  the discovery of his mutilated body is quite small and  the  possible  inference would be that the accused are responsible for commission of  the  murder  of the deceased. Once the last seen theory comes into play,  the  onus  was  on the accused to explain as to what happened to the deceased after  they  were together seen  alive.   The  accused  persons  have  failed  to  render  any reasonable/plausible explanation in this regard.

 43.   Even in the cases of circumstantial evidence, the Court  has  to  take

caution that it does not rely upon conjectures or  suspicion  and  the  same

should  not  be  permitted  to  take  the  place  of   legal   proof.    The

circumstances from which the conclusion of guilt is to be  drawn  should  in

the first instance be fully established and all  the  facts  so  established

should be consistent only with the hypothesis of guilt of the accused.   The

circumstances should be of a conclusive nature and tendency and they  should

be such as to exclude every hypothesis but the one proposed  to  be  proved.

{Ref. Mousam Singha Roy and Others v. State of W.B. [(2003) 12 SCC 377]].

44.   Accused Ganesh, in his statement under Section 313  Cr.P.C.,  admitted

the fact that he was absconding even till the charge-sheet was filed in  the Court declaring him absconding and thereafter, he surrendered at the  Police Station after charges were framed.  On a specific question  as  to  what  he had to say in this regard, except saying that it was  correct,  he  gave  no further explanation.  This piece of evidence points  towards  lack  of  bona fides on the part of this accused.  It may also  be  noticed  that  all  the accused only stated that they did not know anything.  However, they did  not dispute the period during which they were stated  to  be  absconding.   This again is a  circumstance  which,  seen  in  the  light  of  the  prosecution evidence, points towards the guilt of the accused.

 45.   Another argument advanced on behalf of accused Shyamal Ghosh  is  that

he was not named in the FIR, was not identified in police  custody  and  was

also not named by PW8 in his statement.  As far as naming Shyamal  Ghosh  in

the FIR is concerned, none of the accused was named in the  FIR,  which  was

recorded on the statement  of  PW15.   PW15  had  only  informed  about  the

recovery of the gunny bags containing the human body parts.  Thus, it was  a

case of blind murder at that stage and was  so  registered  by  the  police.

Coming to the fact that this accused was not specifically named  by  PW8  in

his statement before the Court, we may notice that it is true  that  Shyamal

Ghosh was not named by the said witness.  PW8 had  only  named  six  accused

persons but it is also to be noted  that  when  he  identified  the  accused persons present in the Court, he specifically stated “the persons  who  were doing the mischief in that night are present in Court  today  (identified)”. PW17 had seen the altercation immediately  preceding  the  strangulation  of the deceased and he has clearly named Shyamal Ghosh in  his  statement.   Of course, this witness also had  named  six  persons  and  according  to  this witness, the accused persons had asked him to leave the place which he  then did.  PW19 had also similarly  named  six  persons  while  not  specifically naming the accused Shyamal but he  also  stated  in  his  examination,  “The persons  whom  I  saw  in  that  night  all  are  present  in  Court   today (identified)”.

46.   This clearly shows that all the  three  eye-witnesses  to  altercation and strangulation named some of the  accused  persons  while  did  not  name others specifically.  However, they identified all the  accused  persons  in the Court as the persons who were present  at  the  time  of  the  mischief, altercation and strangulation of the deceased.  This Court in  the  case  of Tika Ram v. State of Madhya Pradesh [(2007) 15  SCC  760),  while  rejecting the argument that the name of the accused is not mentioned in the  FIR  held that this would not by itself be sufficient to reject the  prosecution  case as against this accused. The court further held that where  the  prosecution is able to establish  its  case,  such  omission  by  itself  would  not  be sufficient to give benefit of doubt to the accused.  In  the  present  case, as already discussed, the prosecution has been able to  establish  its  case beyond reasonable doubt.

47.   From the above discussion, it precipitates that the  discrepancies  or the omissions have to be material ones and then alone, they  may  amount  to contradiction of some serious consequence. Every omission  cannot  take  the place of a contradiction  in  law  and  therefore,  be  the  foundation  for doubting the case of the prosecution. Minor contradictions,  inconsistencies or embellishments of trivial nature which do not  affect  the  core  of  the prosecution case  should  not  be  taken  to  be  a  ground  to  reject  the prosecution evidence in its entirety.   It  is  only  when   such  omissions

amount to a contradiction creating a serious doubt  about  the  truthfulness

or creditworthiness of the witness and other witnesses  also  make  material

improvements or contradictions before the  court  in  order  to  render  the

evidence unacceptable, that the courts may not be in a  position  to  safely

rely  upon  such  evidence.  Serious  contradictions  and  omissions   which

materially affect the case of the  prosecution  have  to  be  understood  in

clear contra-distinction to mere marginal variations  in  the  statement  of

the witnesses.   The prior may have  effect  in  law  upon  the  evidentiary

value of the prosecution case;  however,  the  latter  would  not  adversely

affect the case of the prosecution.   Another settled rule  of  appreciation

of evidence as already indicated is that  the  court  should  not  draw  any

conclusion by picking up  an  isolated  portion  from  the  testimony  of  a

witness without adverting to the statement as a whole.    Sometimes  it  may

be feasible that admission of a fact or circumstance by the witness is  only

to clarify his statement or what has been placed on record.   Where it is  a

genuine attempt on  the  part  of  a  witness  to  bring  correct  facts  by

clarification on record, such statement must be seen in  a  different  light

to a situation where the contradiction is of such a nature that  it  impairs

his evidence in its entirety.

48.   In terms of the explanation to Section 162 Cr.P.C.  which  deals  with an omission to state a fact or circumstance in the statement referred to  in sub-section (1), such omission may  amount  to  contradiction  if  the  same appears to be significant  and  otherwise  relevant  having  regard  to  the context in which such omission occurs and  whether  there  is  any  omission which amounts to contradiction in particular context shall be a question  of fact. A bare reading of this  explanation  reveals  that  if  a  significant omission is made in a statement of a witness under Section 161 Cr.P.C.,  the same may amount to contradiction and the question whether it so  amounts  is a question of fact in each case. (Sunil Kumar Sambhudayal  Gupta  (Dr.)  Vs.State of Maharashtra [(2010) 13 SCC 657] and Subhash Vs.  State  of  Haryana [(2011) 2 SCC 715].

49.   The basic element which is unambiguously clear  from  the  explanation

to Section 162 CrPC is use of the expression ‘may’.   To put  it  aptly,  it is  not  every  omission  or  discrepancy  that  may  amount   to   material contradiction so as to give the accused any advantage.   If the  legislative intent was  to  the  contra,  then  the  legislature  would  have  used  the expression ‘shall’ in place of the word ‘may’.   The word  ‘may’  introduces an element of  discretion  which  has  to  be  exercised  by  the  court  of competent jurisdiction in accordance with law.   Furthermore,  whether  such omission, variation or discrepancy is a material  contradiction  or  not  is  again a question of fact which is to be determined  with  reference  to  thefacts of a given case.   The concept  of  contradiction  in evidence  under criminal jurisprudence, thus, cannot be stated in  any  absolute  terms  and

has to be construed liberally so as to leave desirable discretion  with  the court to determine whether it is a contradiction or  material  contradiction which renders the entire evidence of the witness untrustworthy  and  affects the case of the prosecution materially.

50.   Then, it is also contended and of  course  with  some  vehemence  that

where the prosecution  is  relying  upon  the  last  seen  theory,  it  must

essentially establish the time when the accused and deceased were last  seen

together as well as the time of the death of the deceased.    If  these  two

aspects are not established, the very application of the ‘last seen  theory’

would be impermissible and would create a major dent  in  the  case  of  the

prosecution.   In support of this contention, reliance is  placed  upon  the

judgment of this Court in the case of S.K. Yusuf v.  State  of  West  Bengal

[(2011) 11 SCC 754].

51.   Application of  the  ‘last  seen  theory’  requires  a  possible  link between the time when the person was last seen alive and  the  fact  of  the death of the deceased  coming  to  light.   There  should  be  a  reasonable proximity of time between these two events. This  proposition  of  law  does not admit of much excuse but what has to be seen is that this  principle  is to be applied depending upon the facts and circumstances of  a  given  case. This Court in para 21 of Yusuf’s case (supra) while referring  to  the  case of Mohd. Azad @ Samin v. State of West Bengal [(2008) 15 SCC 449] and  State through Central Bureau of Investigation Vs. Mahender Singh Dahiya [(2011)  3 SCC 109], held as under:-

           “21. The last seen theory comes into play  where  the  time  gap

           between the point of time when the accused and the deceased were

           last seen alive and when the deceased is found dead is so  small

           that possibility of any person other than the accused being  the

           author of the crime becomes  impossible.  (Vide  Mohd.  Azad  v.

           State of W.B and State v. Mahender Singh Dahiya)”

52.    The  reasonableness  of  the  time  gap  is, therefore, of  some significance. If the time gap is very large, then it is not  only  difficult but may even not be proper for the court to infer that the accused had  been last seen alive with the deceased and the former, thus, was responsible  for commission of the offence.    The  purpose  of  applying  these  principles, while keeping the time factor in mind, is to enable  the  Court  to  examine that where the last seen together and the time when the deceased  was  found dead is short, it inevitably leads to the inference that the accused  person was responsible for commission of the crime and  the  onus  was  on  him  to explain how the death occurred.

 53.   In the facts of the present case, the factor of  time  does  not  play such a significant role because it is a case where there were  eye-witnesses to the strangulation of the deceased by the accused, and therefore,  it  may not be expected of the prosecution to show the time of last seen and  death, by leading independent evidence.   PW-17 is the witness to  the  altercation between  the  accused  and  the  deceased.  PW-8  is  the  witness  to   the strangulation of the deceased by the accused persons.   Besides, PW-7,  PW-9 and PW-11 are witnesses to the loading of the gunny  bags  containing  human body parts in the Maruti Van by the accused.  Thus, these  facts  have  been established by independent  witnesses.     None  of  these  witnesses  is  a relation or a witness inimical towards the accused.   It has come on  record that the occurrence had taken place on 29th  September,  2003  at  midnight. There may be some variation  (5  to  10  minutes)  in  the  time  stated  by different witnesses as to  when  the  occurrence  took  place.   From  their statements, it is clear that by and large,  they  have  given  approximately the same time with reasonable variation, which is primarily for  the  reason that the accused  persons  and  deceased  were  seen  by  the  witnesses  at different places. We have already held  that these discrepancies  do  not amount to any material contradiction.    Thus,  the  time  of  death  stands

clearly established between 11.30 pm to 12.00  am  on  29th/30th  September,

2003.  Thereafter, it was the act of disposal of the body  of  the  deceased which attracts the offence under Section 201 IPC.

54.   As far as the death of the deceased is  concerned,  there  was  hardly any time gap between the two incidents, i.e. the last  seen  alive  and  the fact of death of the deceased becoming  known.    All  the  events  occurred between 11.00 p.m. to 12.00 a.m. at midnight of 29th September, 2003.  Thus, the contention raised on this ground is entirely without any merit.

 

55.   On behalf of accused Shyamal, it was also contended that  despite  the

identification parade being held, he was not  identified  by  the  witnesses and also that the identification parade had been held after undue delay  and even when details about the incident had  already  been  telecasted  on  the television.   Thus, the Court should not rely  upon  the  identification  of the accused persons as the persons involved in the commission of  the  crime and they should be given the benefit of doubt.

56.  The whole idea of a Test Identification Parade is  that  witnesses  who claim to have seen the culprits at the time of occurrence  are  to  identify them from the midst of other persons without any aid or  any  other  source. The test is done to check upon their veracity.  In  other  words,  the  main object of holding an identification parade, during the investigation  stage, is to test the memory of the witnesses based upon first impression and  also to enable the prosecution to decide whether all or  any  of  them  could  be cited as eyewitnesses of the crime.

57.   It is equally correct that the CrPC does not oblige the  investigating agency to necessarily hold the  Test  Identification  Parade.    Failure  to hold the test identification parade while in police  custody,  does  not  by itself render the  evidence  of  identification  in  court  inadmissible  or unacceptable.    There  have  been  numerous  cases  where  the  accused  is identified by the witnesses in the court for the first time.    One  of  the views taken is that identification in court for the  first  time  alone  may not form the basis of conviction, but this is not  an  absolute  rule.   The purpose of the Test Identification Parade is  to  test  and  strengthen  the trustworthiness of that evidence. It is accordingly considered a  safe  rule of prudence to generally look for corroboration of the  sworn  testimony  of the witnesses in court as to the identity of the accused who  are  strangers

to them, in the form of earlier identification  proceedings.  This  rule  of prudence is, however subjected to exceptions.      Reference can be made  to Munshi Singh Gautam  v. State of M.P.[(2005) 9 SCC 631], Sheo Shankar  Singh v State of Jharkhand and Anr. [(2011) 3 SCC 654].

58.   Identification  Parade  is  a  tool  of  investigation  and  is  used primarily to strengthen the case of the prosecution on the one hand and  to make doubly sure that persons named accused in the case  are  actually  the culprits.  The Identification Parade primarily  belongs  to  the  stage  of investigation by the police.   The fact that a particular witness has  been able to identify  the  accused  at  an  identification  parade  is  only  a circumstance corroborative of the identification in court.  Thus,  it  is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference  to the facts of a given case.

59.   In the  present  case,  certainly  Shyamal  Ghosh,  accused  was  not

identified at the time of Test Identification Parade held on 28th November,

2003.   However, Sadhu @  Satyajit  Das  was  identified.    PW-14  is  the

learned Judicial Magistrate who had recorded the  statement  of  Manik  Das

under Section 164 CrPC as well as held the Identification  Parade  on  28th

November, 2003.  Other accused were  neither  subjected  to  Identification

Parade nor could the question of identifying them  arise.   The  mere  fact that Shyamal Ghosh accused was not identified by Manik Das is not of  great relevancy in the present case.   Firstly, for the reason that Manik Das was never examined as a witness in the  court  and  even  his  statement  under Section 164 CrPC has not been relied upon by any court while convicting the accused.   Secondly, not only one, but all the witnesses i.e.  PW-7,  PW-8, PW-9, PW-11, PW-17 and PW-19, duly identified the accused in Court and they did so without any demur or hesitation.     Manik  Das  was  a  person  who himself was under a threat and was asked to take the gunny bags  for  their disposal near the Barrackpore Dum  Dum  Highway.    Thus,  we  are  of  the considered view that non-identification of Shyamal Ghosh by  Manik  Das  is inconsequential in the present case.

 

60.   We may notice at this stage  that  having  returned  a  finding  that prosecution has been able to prove its case beyond reasonable doubt on  the

strength of the oral and documentary evidence produced by the  prosecution,

without taking into consideration the statement of  Manik  Das  made  under

Section 164 CrPC., it is not  necessary  for  us  to  examine  whether  the

statement of Manik Das under Section 164 CrPC is admissible in evidence and

what its evidentiary value  is.    The  question  of  law  is  whether  the

statement recorded under Section  164  CrPC  can  be  relied  upon  by  the

prosecution in a given case or not.  We leave this question open.

61.   Lastly, it was contended that the provisions of Section  34  IPC  are not attracted in the present case as the prosecution has not been  able  to prove either common intention or participation of the  accused  persons  in the commission of the crime.   Resultantly, they could not have  been  held guilty of the offence under Section 302 read with Section 34 IPC.    Before we discuss the evidence relevant to this aspect of the case, let us examine the law in relation to ingredients and application of Section 34 IPC.

62.   In a very recent judgment of this court in the case Nand  Kishore  v. State of Madhya Pradesh [(2011) 12 SCC 120], this Court discussed the ambit and scope of Section 34 IPC as well as its applicability to a given case as under :

           “20. A bare reading of this section shows that the section could

           be dissected as follows:

           (a) Criminal act is done by several persons;

           (b) Such act is done in furtherance of the common  intention  of

           all; and

           (c) Each of such persons is liable for  that  act  in  the  same

           manner as if it were done by him alone.

 

           In other words, these three ingredients would guide the court in

           determining whether an accused is liable to  be  convicted  with

           the aid of Section 34. While first two are the  acts  which  are

           attributable and have to be proved as actions  of  the  accused,

           the third is the consequence. Once the criminal act  and  common

           intention are proved, then by fiction of law, criminal liability

           of having done that act by each person individually would arise.

           The criminal act, according to Section 34 IPC must  be  done  by

           several persons. The emphasis in this part of the section is  on

           the word “done”. It only flows from this that  before  a  person

           can be convicted by following the provisions of Section 34, that

           person must have done something along with other  persons.  Some

           individual participation in the commission of the  criminal  act

           would be the requirement. Every individual member of the  entire

           group charged with the aid of Section 34 must, therefore,  be  a

           participant in the joint  act  which  is  the  result  of  their

           combined activity.

           21. Under Section 34, every individual  offender  is  associated

           with  the  criminal  act  which  constitutes  the  offence  both

           physically as well as mentally i.e. he is a participant not only

           in what has been described as a common  act  but  also  what  is

           termed as the common intention and,  therefore,  in  both  these

           respects his  individual  role  is  put  into  serious  jeopardy

           although this individual role might be a part of a common scheme

           in which others have also joined him and played a role  that  is

           similar or different. But referring to the common intention,  it

           needs to be clarified that the courts must keep in mind the fine

           distinction between “common intention” on the one hand and “mens

           rea” as understood  in  criminal  jurisprudence  on  the  other.

           Common intention is not alike or  identical  to  mens  rea.  The

           latter may be coincidental with or collateral to the former  but

           they are distinct and different.

           22. Section 34 also deals with constructive criminal  liability.

           It provides that where a criminal act is done by several persons

           in furtherance of the common intention  of  all,  each  of  such

           persons is liable for that act in the same manner as if  it  was

           done by  him  alone.  If  the  common  intention  leads  to  the

           commission of the criminal offence  charged,  each  one  of  the

           persons sharing the common intention  is  constructively  liable

           for the criminal act done by one of them. (Refer  to  Brathi  v.

           State of Punjab.)

           23. Another aspect which the court has to  keep  in  mind  while

           dealing with such cases is that the common intention or state of

           mind and the physical act, both may be arrived at the  spot  and

           essentially may not be the result of any predetermined  plan  to

           commit such an offence. This will always depend on the facts and

           circumstances of the case, like in the present case Mahavir, all

           alone and unarmed went to demand money from Mahesh  but  Mahesh,

           Dinesh and Nand Kishore got together outside their house and  as

           is evident from the statements of the witnesses, they  not  only

           became aggressive but also committed a crime  and  went  to  the

           extent of stabbing him over and over again at most  vital  parts

           of the body puncturing both the heart and the lung  as  well  as

           pelting stones at him even when he fell on the ground.  But  for

           their participation and a  clear  frame  of  mind  to  kill  the

           deceased, Dinesh probably would  not  have  been  able  to  kill

           Mahavir. The role  attributable  to  each  one  of  them,  thus,

           clearly demonstrates common intention and  common  participation

           to achieve the object of killing the deceased. In  other  words,

           the criminal act was done with the common intention to kill  the

           deceased Mahavir. The trial court has  rightly  noticed  in  its

           judgment that all the accused persons  coming  together  in  the

           night time and giving  such  serious  blows  and  injuries  with

           active participation shows a  common  intention  to  murder  the

           deceased. In these circumstances, the conclusions arrived at  by

           the trial court and the  High  Court  would  not  call  for  any

           interference.

           24. The learned counsel appearing for the appellant  had  relied

           upon the judgment of this Court in Shivalingappa Kallayanappa v.

           State of Karnataka to contend that they could not be charged  or

           convicted for an offence under  Section  302  with  the  aid  of

           Section 34 IPC. The said judgment has rightly been distinguished

           by the High Court in the judgment under appeal.  In  that  case,

           the Supreme Court had considered the role of each individual and

           recorded a finding that there was no common object on  the  part

           of the accused to commit murder. In that  case,  the  Court  was

           primarily concerned with the common object  falling  within  the

           ambit of Section 149 IPC. In fact, Section 34 IPC has  not  even

           been referred to in the aforereferred judgment of this Court.

           25. Another case to which attention of this Court was invited is

           Jai Bhagwan v. State of Haryana. In that case  also,  the  Court

           had discussed the scope of Section 34 IPC and held  that  common

           intention and participation of the accused in commission of  the

           offence are the ingredients which should be satisfied  before  a

           person could be convicted with the aid of Section  34  IPC.  The

           Court held as under: (SCC p. 107, para 10)

                 “10. To apply Section 34 IPC apart from the fact that there

                 should  be  two  or  more  accused,  two  factors  must  be

                 established: (i) common intention and (ii) participation of

                 the accused in the commission of an offence.  If  a  common

                 intention is proved but no overt act is attributed  to  the

                 individual  accused,  Section  34  will  be  attracted   as

                 essentially  it  involves  vicarious   liability   but   if

                 participation of the accused in the crime is proved  and  a

                 common intention is absent, Section 34 cannot  be  invoked.

                 In every case, it is not possible to have  direct  evidence

                 of a common intention. It has to be inferred from the facts

                 and circumstances of each case.”

           26. The facts of the present case examined in the light  of  the

           above principles do not leave any doubt in our  minds  that  all

           the three accused had a common intention in commission  of  this

           brutal crime. Each one of them  participated  though  the  vital

           blows were given by Dinesh Dhimar. But for Mahesh catching  hold

           of the arms of the deceased, probably the death could have  been

           avoided. Nand Kishore showed  no  mercy  and  continued  pelting

           stones on the deceased even when he collapsed to the ground. The

           prosecution  has  been  able  to  establish  the  charge  beyond

           reasonable doubt.”

63.   In the case of Lallan Rai and Others v. State of Bihar [(2003) 1  SCC

268],  this  Court  noticed  the  dominant  feature  for   attracting   the

applicability of  Section  34  IPC  and  dealt  with  the  case  where  the

contention was that several persons may have similar  intention,  yet  they

may not have common intention in furtherance to which they participated  in

an action.   The court noticed as under:-

           “17. In para 44 of  the  judgment  in  Suresh  this  Court  (the

           majority view) stated: (SCC pp. 689-90)

                 “44. Approving  the  judgments  of  the  Privy  Council  in

                 Barendra Kumar Ghosh and Mahbub Shah  cases  a  three-Judge

                 Bench of this Court in Pandurang v. State of Hyderabad held

                 that to attract the applicability of Section 34 of the Code

                 the prosecution is under an obligation  to  establish  that

                 there existed a common  intention  which  requires  a  pre-

                 arranged plan because  before  a  man  can  be  vicariously

                 convicted for the criminal act of  another,  the  act  must

                 have been done in furtherance of the  common  intention  of

                 all. This Court had  in  mind  the  ultimate  act  done  in

                 furtherance of the common intention. In the  absence  of  a

                 pre-arranged plan and  thus  a  common  intention  even  if

                 several persons simultaneously attack a man and each one of

                 them  by  having  his  individual  intention,  namely,  the

                 intention to kill  and  each  can  individually  inflict  a

                 separate fatal blow and yet  none  would  have  the  common

                 intention required by the section. In a case like that each

                 would be individually liable for whatever injury he  caused

                 but none could be vicariously convicted for the act of  any

                 or the other. The  Court  emphasised  the  sharing  of  the

                 common intention and not the individual acts of the persons

                 constituting the crime. Even at the cost of  repetition  it

                 has to be emphasised that for proving the common  intention

                 it is necessary  either  to  have  direct  proof  of  prior

                 concert or proof of circumstances which necessarily lead to

                 that   inference   and   ‘incriminating   facts   must   be

                 incompatible  with  the  innocence  of  the   accused   and

                 incapable  of   explanation   or   any   other   reasonable

                 hypothesis’. Common intention, arising at any time prior to

                 the criminal act, as contemplated under Section 34  of  the

                 Code, can thus be proved by circumstantial evidence.”

 

           18. In Suresh this Court while recording  the  dominant  feature

           for attracting Section 34 has the following to  state:  (SCC  p.

           686, para 39)

 

                 “39. The dominant feature for attracting Section 34 of  the

                 Indian Penal Code (hereinafter referred to as  ‘the  Code’)

                 is the element of participation in absence resulting in the

                 ultimate ‘criminal act’. The ‘act’ referred to in the later

                 part of Section 34 means the  ultimate  criminal  act  with

                 which  the  accused  is  charged  of  sharing  the   common

                 intention. The accused is, therefore, made responsible  for

                 the ultimate  criminal  act  done  by  several  persons  in

                 furtherance of the common intention  of  all.  The  section

                 does not envisage the  separate  act  by  all  the  accused

                 persons for becoming responsible for the ultimate  criminal

                 act. If such an interpretation is accepted, the purpose  of

                 Section 34 shall be rendered infructuous.”

 

           19. For true and correct appreciation of legislative  intent  in

           the matter of engrafting of Section 34 in the statute-book,  one

           needs to have a look into the provision and as such  Section  34

           is set out as below:

                 “34. Acts done by several persons in furtherance of  common

                 intention.—When a criminal act is done by  several  persons

                 in furtherance of the common intention of all, each of such

                 persons is liable for that act in the same manner as if  it

                 were done by him alone.”

           20. A plain look at the statute  reveals  that  the  essence  of

           Section 34 is simultaneous consensus  of  the  mind  of  persons

           participating in the criminal action to bring about a particular

           result. It is  trite  to  record  that  such  consensus  can  be

           developed at the spot. The  observations  above  obtain  support

           from the decision of this Court in Ramaswami Ayyangar  v.  State

           of T.N.

 

           21. In a similar vein the Privy Council in Barendra Kumar  Ghosh

           v. King Emperor stated the true purport of Section 34 as  below:

           (AIR p. 6)

                 “[T]he words of Section 34 are not  to  be  eviscerated  by

                 reading them in this exceedingly limited sense. By  Section

                 33 a criminal act in Section 34 includes a series  of  acts

                 and, further, ‘act’ includes omission to act, for  example,

                 an omission to interfere in order to prevent a murder being

                 done before one's  very  eyes.  By  Section  37,  when  any

                 offence is committed  by  means  of  several  acts  whoever

                 intentionally cooperates in the commission of that  offence

                 by doing any one of those acts, either  singly  or  jointly

                 with any other person, commits that offence.  Even  if  the

                 appellant did nothing as he stood outside the door,  it  is

                 to be remembered that in crimes as in  other  things  ‘they

                 also serve who only stand and wait’.”

           22. The above discussion in fine thus culminates to  the  effect

           that the requirement of statute is sharing the common  intention

           upon being present at the place of occurrence.  Mere  distancing

           himself from the scene cannot absolve the accused —  though  the

           same however depends upon the fact situation of the matter under

           consideration and no rule steadfast can be laid down therefor.”

 

64.   Upon analysis of the above judgments and in particular  the  judgment

of this Court in the case of Dharnidhar  v.  State  of  Uttar  Pradesh  and

Others [(2010) 7 SCC 759], it is clear that Section 34  IPC  applies  where

two or more accused are present and two factors must  be  established  i.e.

common intention and participation of the accused in the crime. Section  34

IPC moreover, involves vicarious liability and therefore, if the  intention is proved but no overt act was committed, the Section can still be invoked.   This provision carves out an exception from general law that a person  is responsible for his own act, as it provides that a person can also be  held vicariously responsible for the  act  of  others,  if  he  had  the  common intention to commit the act.   The phrase ‘common intention’ means  a  pre-oriented plan and acting in pursuance to the plan, thus,  common  intention must exist prior to the commission of the act in a  point  of  time.    The common intention to give effect to a particular act may even develop at the spur of moment between a number of persons with reference to the facts of a given case.

65.   The ingredients of more than two persons being present, existence  of

common intention and commission of an overt act stand  established  in  the

present case.   The statements of the witnesses clearly show that  all  the

eight accused were present at the scene of occurrence.  They  had  demanded

money and extended threat of dire consequences, if  their  demand  was  not

satisfied.  Thereafter, they had altercation  with  the  deceased  and  the

deceased was strangulated by the accused persons  and  then  his  body  was

disposed of by cutting it into pieces and packing the same  in  gunny  bags and abandoning the same at a deserted place near the  Barrackpore  Dum  Dum

Highway. Thus, all these acts obviously were in furtherance to  the  common

intention of doing away with the deceased, if he failed to  give  them Rs.40,000/- as demanded.  The offence was committed with common intention  and

collective participation.   The various acts were  performed  by  different

accused in presence of each one of them.   In  other  words,  each  of  the

accused had common intention.   Thus, we find  that  the  argument  on  the

application of Section 34 IPC advanced on behalf of the accused is  without

any substance.

66.   For the reasons afore-stated, we see no reason to interfere with  the

judgment of the High Court either on merits or on the quantum of  sentence.

 Therefore, the appeals are dismissed.

                                             …….…………......................J.

                                                              (A.K. Patnaik)

                                              ...….…………......................J.

                                                           (Swatanter Kumar)

New Delhi,

July 11, 2012

Comments