REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1994 OF 2009
Mrinal Das & Ors. .... Appellant(s)
Versus
The State of Tripura .... Respondent(s)
WITH
CRIMINAL APPEAL NO. 1719 2011
(ARISING OUT OF SLP (CRL.) No.6728/2011 ( CRL.M.P. NO.
17812 OF 2008)
J U D G M E N T
P. Sathasivam, J.
a) Criminal Appeal No. 1994 of 2009
1) This appeal is filed against the final judgment and order
dated 29.01.2008 passed by the Gauhati High Court, Agartala
Bench in Criminal Appeal No. 90 of 2005 whereby the Division
Bench of the High Court, on an appeal filed by the State of
Tripura-respondent herein, reversed the order of acquittal of
the appellants herein dated 19.04.2005 passed by the
1
Additional Sessions Judge, West Tripura, Khowai in Case S.T.
No. 54(WT/K)/2002 and convicted and sentenced them to
imprisonment for life under Section 302 read with Section 34
of Indian Penal Code, 1860 (hereinafter referred to as "IPC")
with a fine of Rs.3000/- each, in default, to suffer a further
term of simple imprisonment for three months.
b) Criminal Appeal No.1719 of 2011
@ SLP (Crl.) 6728/2011 ( Crl. M.P.17812 of 2008)
2) The convicted accused, Tapan Das (A-5) and Gautam Das
(A-11), against the same order of the High Court dated
29.01.2008 confirming their conviction under Section 302 IPC
and imposing life sentence with a fine of Rs.3,000/- each, in
default, to suffer simple imprisonment for three months filed
this appeal by way of special leave petition with a delay of 62
days. Delay condoned. Leave granted.
3) Brief facts:
a) On 31.08.2000, a meeting was convened in West
Santinagar S.B. School at the invitation of Durgapur Local
Committee of Democratic Youth Federation of India (in short
"DYFI"). After the meeting was over, Tapan Chakraborty,
(since deceased), a leader of DYFI accompanied by Babul Dey
2
PW-1, Ganesh Kol PW-2, Nilai Das PW-3, Ramakanta Paul
PW-10, Benu Ranjan Dhupi PW-11 and Prabir Biswas PW-12
reached Santinagar Ferry Ghat to cross the river on way to
home, on the other side of the river. At about 6.30 p.m., when
Tapan Chakbraborty and his companions disembarked from
the boat, Ratan Sukladas (A-12) dragged him down and when
he fell on the ground, Tapan Das (A-5) and Gautam Das (A-11)
shot at him causing severe bullet injuries. After finishing their
job, the assailants fled away. The victim was immediately
taken to the local hospital but as he was sinking, he was
referred to G.B. Hospital at Agartala for specialized treatment.
The victim died on the way to hospital.
(b) On the very same day, at about 08:35 p.m, one Babul Dey
(PW-1) lodged a First Information Report (in short "the FIR")
being FIR No. 85/2000 with the Police Station, Kalyanpur,
West Tripura, Tripura. On the basis of the FIR, a case was
registered under Sections 148, 149, 326 and 307 of the IPC
read with Section 27 of the Arms Act, 1959 against eight
persons, viz., Somesh Das (A-7), Mrinal Das (A-4), Tapan Das
(A-5), Ashim Bhattacharjee (A-2), Pradip Das (A-9), Shailendra
3
Das (A-3), Subal Deb (A-10) and Gautam Das (A-11) and
others.
c) After the death of Tapan Chakraborty, Section 302 IPC
was also added against the accused persons. During the
investigation, the Investigating Officer arrested 13 accused
persons and on completion, filed a report under Section 173 of
the Code of Criminal Procedure, 1973 (hereinafter referred to
as "the Code") under Sections 148, 149, 326 and 302 IPC and
Section 27 of the Arms Act against Somesh Das (A-7), Mrinal
Das (A-4), Tapan Das (A-5), Ashim Bhattacharjee (A-2), Pradip
Das (A-9), Shailendra Das (A-3), Subal Deb (A-10), Gautam
Das (A-11), Anil Das (A-1), Bikash Das (A-6), Uttam Shil (A-8),
Ratan Sukladas (A-12) and Radha Kant Das (A-13).
d) Vide order dated 12.08.2002, the Additional Sessions
Judge, Khowai, West Tripura, framed charges under Sections
148, 149 and 302 IPC against all the 13 accused persons.
Thereafter on 20.11.2002, on the request of the Special Public
Prosecutor to alter the charges, the Additional Sessions Judge
modified the charges under Section 302 read with Section
34/120B IPC and Section 27 of the Arms Act.
4
e) During the recording of evidence, on 16.06.2004,
accused Ratan Sukladas (A-12) filed an application praying for
grant of `pardon' and to treat him as an `approver' which was
granted by the trial Court. After examining all the witnesses,
the trial Court, vide judgment dated 19.04.2005, acquitted
Anil Das (A-1), Ashim Bhattacharjee (A-2), Shailendra Das
(A-3), Mrinal Das (A-4), Bikash Das (A-6), Somesh Das (A-7),
Uttam Shil (A-8), Pradip Das (A-9), Subal Deb (A-10) and
Radha Kant Das (A-13) of the charges leveled against them
and convicted Tapan Das (A-5) and Gautam Das (A-11) for the
offences punishable under Section 302 of the IPC and
sentenced them to suffer rigorous imprisonment for life and to
pay a fine of Rs.3,000/- each, in default, to further undergo
simple imprisonment for three months.
f) Aggrieved by the judgment of the trial Court, Tapan Das
(A-5) and Gautam Das (A-11) filed an appeal being Criminal
Appeal No. 47 of 2005 in the Gauhati High Court, Agartala
Bench. The State of Tripura also filed Criminal Appeal No. 90
of 2005 against the order of acquittal of ten accused persons
by the trial Court. The High Court, by impugned common
5
judgment dated 29.01.2008, dismissed the appeal filed by the
convicted accused persons (A-5 and A-11) and partly allowed
the appeal filed by the State by setting aside the acquittal of
four persons, namely, Mrinal Das (A-4), Pradip Das (A-9),
Somesh Das (A-7) and Anil Das (A-1) and convicted them
under Sections 302/34 IPC and sentenced them with
imprisonment for life with a fine of Rs.3000/- each, in default,
to suffer a further term of simple imprisonment for three
months.
g) Aggrieved by the common impugned judgment dated
29.01.2008 passed by the Division Bench of the High Court,
all the convicted accused persons filed these appeals before
this Court by way of special leave. Vide this Court's order
dated 16.09.2009, the name of Pradip Das, appellant No.2
herein and (A-9) before the trial Court has been deleted from
the array of the parties as he is not traceable.
4) Heard Mr. Sidharth Luthra, learned senior counsel for
the appellants and Mr. Anuj Prakash, learned counsel for
respondent-State.
6
Legal position with regard to interference in Appeal
against Acquittal:
5) Since the High Court has interfered in the case of
acquittal, let us consider the general principles enunciated by
this Court with regard to the same.
6) In State of Goa vs. Sanjay Thakran & Anr. (2007) 3
SCC 755, this Court while considering the power of appellate
court to interfere in an appeal against acquittal, after
adverting to various earlier decisions on this point has
concluded as under:-
"16.....while exercising the powers in appeal against the
order of acquittal the court of appeal would not ordinarily
interfere with the order of acquittal unless the approach of
the lower court is vitiated by some manifest illegality and the
conclusion arrived at would not be arrived at by any
reasonable person and, therefore, the decision is to be
characterised as perverse. Merely because two views are
possible, the court of appeal would not take the view which
would upset the judgment delivered by the court below.
However, the appellate court has a power to review the
evidence if it is of the view that the view arrived at by the
court below is perverse and the court has committed a
manifest error of law and ignored the material evidence on
record. A duty is cast upon the appellate court, in such
circumstances, to reappreciate the evidence to arrive at a
just decision on the basis of material placed on record to find
out whether any of the accused is connected with
commission of the crime he is charged with."
7) In Chandrappa and Others vs. State of Karnataka
(2007) 4 SCC 415, while considering the similar issue, namely,
7
appeal against acquittal and power of the appellate court to
reappreciate, review or reconsider evidence and interfere with
the order of acquittal, this Court, reiterated the principles laid
down in the above decisions and further held that:-
"42.....The following general principles regarding powers of the
appellate court while dealing with an appeal against an order of
acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such power
and an appellate court on the evidence before it may reach
its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive powers
of an appellate court in an appeal against acquittal. Such
phraseologies are more in the nature of "flourishes of
language" to emphasise the reluctance of an appellate court
to interfere with acquittal than to curtail the power of the
court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in favour of
the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of criminal
jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not
disturb the finding of acquittal recorded by the trial court."
8
The same principles have been reiterated in several recent
decisions of this Court vide State of Uttar Pradesh vs.
Jagram and Others, (2009) 17 SCC 405, Sidhartha
Vashisht alias Manu Sharma vs. State (NCT of Delhi)
(2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189,
Ganpat vs. State of Haryana and Others, (2010) 12 SCC
59, Sunil Kumar Sambhudayal Gupta (Dr.) and Others vs.
State of Maharashtra, (2010) 13 SCC 657, State of Uttar
Pradesh vs. Naresh and Others, (2011) 4 SCC 324, State of
Madhya Pradesh vs. Ramesh and Another, (2011) 4 SCC
786.
8) It is clear that in an appeal against acquittal in the
absence of perversity in the judgment and order, interference
by this Court exercising its extraordinary jurisdiction, is not
warranted. However, if the appeal is heard by an appellate
court, being the final court of fact, is fully competent to re-
appreciate, reconsider and review the evidence and take its
own decision. In other words, law does not prescribe any
limitation, restriction or condition on exercise of such power
and the appellate court is free to arrive at its own conclusion
9
keeping in mind that acquittal provides for presumption in
favour of the accused. The presumption of innocence is
available to the person and in criminal jurisprudence every
person is presumed to be innocent unless he is proved guilty
by the competent court. If two reasonable views are possible
on the basis of the evidence on record, the appellate court
should not disturb the findings of acquittal. There is no
limitation on the part of the appellate court to review the
evidence upon which the order of acquittal is found and to
come to its own conclusion. The appellate court can also
review the conclusion arrived at by the trial Court with respect
to both facts and law. While dealing with the appeal against
acquittal preferred by the State, it is the duty of the appellate
court to marshal the entire evidence on record and only by
giving cogent and adequate reasons set aside the judgment of
acquittal. An order of acquittal is to be interfered with only
when there are "compelling and substantial reasons" for doing
so. If the order is "clearly unreasonable", it is a compelling
reason for interference. When the trial Court has ignored the
evidence or misread the material evidence or has ignored
1
material documents like dying declaration/report of ballistic
experts etc., the appellate court is competent to reverse the
decision of the trial Court depending on the materials placed.
9) With the above principles, let us analyse the reasonings
and ultimate conclusion of the High Court in interfering with
the order of acquittal and also the confirmation of sentence on
the two convicted appellants.
Evidentiary value of Approver/Accomplice:
10) Before considering the impugned judgment on merits,
inasmuch as the High Court heavily relied on the evidence of
the "approver", let us find out the legal position about the
evidentiary value of "approver" and its acceptability with or
without corroboration.
11) Though a conviction is not illegal merely because it
proceeds on the uncorroborated testimony of an approver, yet
the universal practice is not to convict upon the testimony of
an accomplice unless it is corroborated in material particulars.
The evidence of an approver does not differ from the evidence
of any other witness save in one particular aspect, namely,
1
that the evidence of an accomplice is regarded ab initio as
open to grave suspicion.
12) If the suspicion which attaches to the evidence of an
accomplice be not removed, that evidence should not be acted
upon unless corroborated in some material particulars; but if
the suspicion attaching to the accomplice's evidence be
removed, then that evidence may be acted upon even though
uncorroborated, and the guilt of the accused may be
established upon the evidence alone.
13) In order to understand the correct meaning and
application of this term, it is desirable to mention Section 133
of the Indian Evidence Act, 1872 along with Illustration (b) to
Section 114 which read as under:-
"133. Accomplice .- An accomplice shall be a competent
witness against an accused person; and a conviction is not
illegal merely because it proceeds upon the uncorroborated
testimony of an accomplice."
Illustration (b) to Section 114
"(b) The Court may presume that an accomplice is unworthy
of credit, unless he is corroborated in material particulars."
1
Dealing with the scope and ambit of the above-noted two
provisions, this Court, in Bhiva Doulu Patil v. State of
Maharahshtra, AIR 1963 SC 599=(1963) 3 SCR 830 has held
that both the sections are part of one subject and have to be
considered together. It has further been held:-
"The combined effect of Sections 133 and Illustration (b) to
Section 114, may be stated as follows:
According to the former, which is a Rule of law, an
accomplice is competent to give evidence and according to
the latter, which is a Rule of practice it is almost always
unsafe to convict upon his testimony alone. Therefore,
though the conviction of an accused on the testimony of an
accomplice cannot be said to be illegal yet the courts will, as
a matter of practice, not accept the evidence of such a
witness without corroboration in material particulars."
14) The very same principle was reiterated in Mohd. Husain
Umar Kochra etc. v. K. S. Dalipsinghji and Another etc.,
(1969) 3 SCC 429 and it was held :--
".... The combined effect of Sections 133 and 114,
Illustration (b) is that though a conviction based upon
accomplice evidence is legal, the Court will not accept such
evidence unless it is corroborated in material particulars.
The corroboration must connect the accused with the crime.
It may be direct or circumstantial. It is not necessary that
the corroboration should confirm all the circumstances of
the crime. It is sufficient if the corroboration is in material
particulars. The corroboration must be from an independent
source. One accomplice cannot corroborate another."
1
15) While considering the validity of approver's testimony
and tests of credibility, this Court, in Sarwan Singh S/o
Rattan Singh vs. State of Punjab AIR 1957 SC 637 has held
as under:-
"7.....An accomplice is undoubtedly a competent witness
under the Indian Evidence Act. There can be, however, no
doubt that the very fact that he has participated in the
commission of the offence introduces a serious stain in his
evidence and Courts are naturally reluctant to act on such
tainted evidence unless it is corroborated in material
particulars by other independent evidence. It would not be
right to expect that such independent corroboration should
cover the whole of the prosecution story or even all the
material particulars. If such a view is adopted it would
render the evidence of the accomplice wholly superfluous.
On the other hand, it would not be safe to act upon such
evidence merely because it is corroborated in minor
particulars or incidental details because, in such a case,
corroboration does not afford the necessary assurance that
the main story disclosed by the approver can be reasonably
and safely accepted as true. But it must never be forgotten
that before the court reaches the stage of considering the
question of corroboration and its adequacy or otherwise, the
first initial and essential question to consider is whether
even as an accomplice the approver is a reliable witness. If
the answer to this question is against the approver then
there is an end of the matter, and no question as to whether
his evidence is corroborated or not falls to be considered. In
other words, the appreciation of an approver's evidence has
to satisfy a double test. His evidence must show that he is a
reliable witness and that is a test which is common to all
witnesses. If this test is satisfied the second test which still
remains to be applied is that the approver's evidence must
receive sufficient corroboration. This test is special to the
cases of weak or tainted evidence like that of the approver.....
8.....Every person who is a competent witness is not a
reliable witness and the test of reliability has to be satisfied
by an approver all the more before the question of
1
corroboration of his evidence is considered by criminal
courts"
16) Further, in Ravinder Singh v. State of Haryana,
(1975) 3 SCC 742, this Court, while considering the approver's
testimony within the meaning of Section 133 of the
Indian Evidence Act, 1872 has observed :--
"12. An Approver is a most unworthy friend, if at all, and he,
having bargained for his immunity, must prove his
worthiness for credibility in Court. This test is fulfilled,
firstly, if the story he relates involves him in the crime and
appears intrinsically to be a natural and probable catalogue
of events that had taken place. Secondly, once that hurdle is
crossed, the story given by an approver so far as the accused
on trial is concerned, must implicate him in such a manner
as to give rise to a conclusion of guilt beyond reasonable
doubt. In a rare case, taking into consideration all the
factors, circumstances and situation governing a particular
case, conviction based on the uncorroborated evidence of
an approver confidently held to be true and reliable by the
Court may be permissible. Ordinarily, however,
an approver's statement has to be corroborated in material
particulars bridging closely the distance between the crime
and the criminal. Certain clinching features of involvement
disclosed by an approver appertaining directly to an
accused, if reliable, by the touchstone of other independent
credible evidence, would give the needed assurance for
acceptance of his testimony on which a conviction may be
based."
17) In Abdul Sattar v. Union Territory, Chandigarh, 1985
(Supp) SCC 599 where the prosecution had sought to prove its
case by relying upon the evidence of the approver, it was held
that the approver is a competent witness but the position in
law is fairly well settled that on the uncorroborated testimony
1
of the approver, it would be risky to base the conviction,
particularly, in respect of a serious charge like murder. Once
the evidence of the approver is found to be not reliable, the
worth of his evidence is lost and such evidence, even by
seeking corroboration, cannot be made the foundation of a
conviction.
18) The above said ratio has been reaffirmed and reiterated
by this Court in Suresh Chandra Bahri v. State of Bihar
(1995 Supp (1) SCC 80); Ramprasad v. State of
Maharashtra, : AIR 1999 SC 1969 : (1999 Cri LJ 2889) and
Narayan Chetanram Chaudhary v. State of
Maharashtra, : (2000) 8 SCC 457.
19) In Narayan Chetanram Chaudhary (supra), it was
further held that for corroborative evidence, the court must
look at the broad spectrum of the approver's version and then
find out whether there is other evidence to corroborate and
lend assurance to that version. The nature and extent of such
corroboration may depend upon the facts of different cases.
Corroboration need not be in the form of ocular testimony of
1
witnesses and may even be in the form of
circumstantial evidence. Corroborative evidence must be
independent and not vague or unreliable.
20) Similar question again came up for consideration before
this Court in K. Hashim v State of Tamil Nadu, (2005) 1
SCC 237 : 2005 Cri LJ 143 and Sitaram Sao @ Mungeri v
State of Jharkhand, (2007) 12 SCC 630 wherein this Court
has held that:
"26. Section 133 of the Evidence Act expressly provides that
an accomplice is a competent witness and the conviction is
not illegal merely because it proceeds on an uncorroborated
testimony of an accomplice. In other words, this section
renders admissible such uncorroborated testimony. But this
Section has to be read along with Section 114, illustration
(b). The latter section empowers the Court to presume the
existence of certain facts and the illustration elucidates what
the Court may presume and make clear by means of
examples as to what facts the Court shall have regard in
considering whether or not maxims illustrated apply to a
given case. Illustration (b) in express terms says that
accomplice is unworthy of credit unless he is corroborated in
material particulars. The Statute permits the conviction of
an accused on the basis of uncorroborated testimony of an
accomplice but the rule of prudence embodied in illustration
(b) to Section 114 of the Evidence Act strikes a note of
warning cautioning the Court that an accomplice does not
generally deserve to be believed unless corroborated in
material particulars. In other words, the rule is that the
necessity of corroboration is a matter of prudence except
when it is safe to dispense with such corroboration must be
clearly present in the mind of the Judge"
1
21) In Sheshanna Bhumanna Yadav vs. State of
Maharashtra (1970) 2 SCC 122, the test of reliability of
approver's evidence and rule as to corroboration was
discussed. The following discussion and conclusion are
relevant which read as under:-
"12. The law with regard to appreciation of approver's
evidence is based on the effect of Sections 133 and 114,
illustration (b) of the Evidence Act, namely, that an
accomplice is competent to depose but as a rule of caution it
will be unsafe to convict upon his testimony alone. The
warning of the danger of convicting on uncorroborated
evidence is therefore given when the evidence is that of an
accomplice. The primary meaning of accomplice is any party
to the crime charged and some one who aids and abets the
commission of crime. The nature of corroboration is that it is
confirmatory evidence and it may consist of the evidence of
second witness or of circumstances like the conduct of the
person against whom it is required. Corroboration must
connect or tend to connect the accused with the crime.
When it is said that the corroborative evidence must
implicate the accused in material particulars it means that it
is not enough that a piece of evidence tends to confirm the
truth of a part of the testimony to be corroborated. That
evidence must confirm that part of the testimony which
suggests that the crime was committed by the accused. If a
witness says that the accused and he stole the sheep and he
put the skins in a certain place, the discovery of the skins in
that place would not corroborate the evidence of the witness
as against the accused. But if the skins were found in the
accused's house, this would corroborate because it would
tend to confirm the statement that the accused had some
hand in the theft.
13. This Court stated the law of corroboration of accomplice
evidence in several decisions. One of the earlier decision is
Sarwan Singh v. State of Punjab, 1957 SCR 953 and the
recent decision is Lachi Ram v. State of Punjab, (1967) 1 SCR
243. In Sarwan Singh case this Court laid down that before
the court would look into the corroborative evidence it was
necessary to find out whether the approver or accomplice
1
was a reliable witness. This Court in Lachi Ram case said
that the first test of reliability of approver and accomplice
evidence was for the court to be satisfied that there was
nothing inherently impossible in evidence. After that
conclusion is reached as to reliability corroboration is
required. The rule as to corroboration is based on the
reasoning that there must be sufficient corroborative
evidence in material particulars to connect the accused with
the crime."
22) In Dagdu and Ors. vs. State of Maharashtra, (1977) 3
SCC 68, the scope of Section 133 and Illustration (b) to
Section 114 of the Indian Evidence Act, 1872 and nature of
rule of corroboration of accomplice evidence was explained by
a three-Judge Bench of this Court in the following manner:
"24. In Bhiiboni Sahu v. King the Privy Council after noticing
Section 133 and Illustration (b) to Section 114 of the
Evidence Act observed that whilst it is not illegal to act on
the uncorroborated evidence of an accomplice, it is a rule of
prudence so universally followed as to amount almost to a
rule of law that it is unsafe to act on the evidence of an
accomplice unless it is corroborated in material respects so
as to implicate the accused; and further that the evidence of
one accomplice cannot be used to corroborate the evidence
of another accomplice. The rule of prudence was based on
the interpretation of the phrase "corroborated in material
particulars" in Illustration (b). Delivering the judgment of the
Judicial Committee, Sir John Beaumont observed that the
danger of acting on accomplice evidence is not merely that
the accomplice is on his own admission a man of bad
character who took part in the offence and afterwards to
save himself betrayed his former associates, and who has
placed himself in a position in which he can hardly fail to
have a strong bias in favour of the prosecution; the real
danger is that he is telling a story which in its general
outline is true, and it is easy for him to work into the story
matter which is untrue. He may implicate ten people in an
offence and the story may be true in all its details as to eight
of them but untrue as to the other two whose names may
1
have been introduced because they are enemies of the
approver. The only real safeguard therefore against the risk
of condemning the innocent with the guilty lies in insisting
on independent evidence which in some measure implicates
each accused.
25. This Court has in a series of cases expressed the same
view as regards accomplice evidence. (See State of Bihar v.
Basawan Singh; Hari Charan Kurmi v. State of Bihar; Haroon
Haji Abdulla v. State of Maharashtra; and Ravinder Singh v.
State of Haryana.) In Haricharan, Gajendragadkar, C.J.,
speaking for a five-Judge Bench observed that the testimony
of an accomplice is evidence under Section 3 of the Evidence
Act and has to be dealt with as such. The evidence is of a
tainted character and as such is very weak; but,
nevertheless, it is evidence and may be acted upon, subject
to the requirement which has now become virtually a part of
the law that it is corroborated in material particulars."
23) In Rampal Pithwa Rahidas and Others vs. State of
Maharashtra, 1994 Supp (2) SCC 73, while considering the
very same provisions, this Court has held that approver's
evidence must be corroborated in material particulars by
direct or circumstantial evidence. This Court further held that
while considering credibility of the approver and weight to be
attached to his statement, the statement made in bail
application of approver can be looked into by the court.
24) It is clear that once the evidence of the approver is held
to be trustworthy, it must be shown that the story given
by him so far as an accused is concerned, must implicate him
2
in such manner as to give rise to a conclusion of guilt beyond
reasonable doubt. Insistence upon corroboration is based on
the rule of caution and is not merely a rule of law.
Corroboration need not be in the form of ocular testimony of
witnesses and may even be in the form of circumstantial
evidence.
25) Keeping the legal principles enunciated by this Court in
respect of interference by the appellate court in case of
acquittal by the trial Court and evidentiary value of
"approver"/"accomplice", let us discuss the oral and
documentary evidence led in by the prosecution and the
defence.
Approver's evidence (PW-6)
26) One Ratan Sukladas S/o Prafullya Sukladas, originally
charged as accused No. 12, after tendering pardon was
examined as PW-6 on the side of the prosecution. Mr.
Sidharth Luthra, learned senior counsel for the appellants
submitted that inasmuch as PW-6 waited for four years to
change his mind and sought pardon for his action, his
statement is not reliable and the courts below ought to have
2
rejected his testimony. In order to appreciate the said
contention, it is useful to refer the relevant provisions of the
Code relating to tender of pardon and power to direct tender of
pardon to approver/accomplice.
27) Sections 306 and 307 of the Code read as under:
"306. Tender of pardon to accomplice.--(1) With a view to
obtaining the evidence of any person supposed to have been
directly or indirectly concerned in or privy to an offence to
which this section applies, the Chief Judicial Magistrate or a
Metropolitan Magistrate at any stage of the investigation or
inquiry into, or the trial of, the offence, and the Magistrate of
the first class inquiring into or trying the offence, at any,
stage of the inquiry or trial, may tender a pardon to such
person on condition of his making a full and true disclosure
of the whole of the circumstances within his knowledge
relative to the offence and to every other person concerned,
whether as principal or abettor, in the commission thereof.
(2) XXXXX
(3) Every Magistrate who tenders a pardon under sub-
section (1) shall record-
(a) His reasons for so doing;
(b) Whether the tender was or was not accepted by the
person to whom it was made,
and shall, on application made by the accused, furnish him
with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under
sub-section (1)-
(a) Shall be examined as a witness in the court of the
Magistrate taking cognizance of the offence and in the
subsequent trial, if any;
(b) Shall, unless he is already on bail, be detained in custody
until the termination of the trial.
2
(5) Where a person has accepted a tender of pardon made
under sub-section (1) and has, been examined under sub-
section (4), the Magistrate taking cognizance of the offence
shall, without making any further inquiry in the case.
(a) Commit it for trial-
(i) To the Court of Session if the offence is triable exclusively
by that court or if the Magistrate taking cognizance is the
Chief Judicial Magistrate;
(ii) To a court of Special Judge appointed under the Criminal
Law Amendment Act 1952 (46 of 1952), if the offence is
triable exclusively by that court;
(b) In any other case, make over the case to the Chief
Judicial Magistrate who shall try the case himself."
"307. Power to direct tender of pardon.--At any time after
commitment of a case but before Judgment is passed, the
court to which the commitment is made may, with a view, to
obtaining at the trial the evidence of any person supposed to
have been directly or indirectly concerned in, or privy to, any
such offence, tender a pardon on the same condition to such
person."
28) The principle of tendering pardon to an accomplice is to
unravel the truth in a grave offence so that guilt of the other
accused persons concerned in commission of crime could be
brought home. The object of Section 306 of the Code of
Criminal Procedure, 1973 (in short "the Code") is to allow
pardon in cases where heinous offence is alleged to have been
committed by several persons so that with the aid of the
evidence of the person granted pardon, the offence may be
2
brought home to the rest. This Section empowers the Chief
Judicial Magistrate or a Metropolitan Magistrate to tender a
pardon to a person supposed to have been directly or
indirectly concerned in or privy to an offence to which the
section applies, at any stage of the investigation or inquiry or
trial of the offence on condition of his making a full and true
disclosure of the whole of the circumstances within his
knowledge relative to the offence. Under Section 306 of the
Code, the Magistrate of the First Class is also empowered to
tender pardon to an accomplice at any stage of inquiry or trial
but not at the stage of investigation on condition of his making
full and true disclosure of the entire circumstances within his
knowledge relative to the crime. Section 307 of the Code vests
the Court to which the commitment is made, with power to
tender a pardon to an accomplice. An accomplice who has
been granted pardon under Section 306 or 307 of the Code
gets protection from prosecution. When he is called as a
witness for the prosecution, he must comply with the
condition of making a full and true disclosure of the whole of
the circumstances within his knowledge concerning the
2
offence and to every other person concerned, whether as
principal or abettor, in the commission thereof and if he
suppresses anything material and essential within his
knowledge concerning the commission of crime or fails or
refuses to comply with the condition on which the tender was
made and the Public Prosecutor gives his certificate under
Section 308 of the Code to that effect, the protection given to
him can be lifted.
29) Section 306 (4) makes it clear that the person accepting a
tender of pardon should be examined as a witness first in the
Court of Magistrate and subsequently in the trial Court. Once
an accused is granted pardon under Section 306, he ceases to
be an accused and becomes witness for the prosecution.
Regarding the delay in tendering pardon, it is not in dispute
that the trial commenced on 11.03.2003 with the examination
of prosecution witnesses. The approver - PW-6, submitted his
application to become an approver on 16.06.2004 well before
the judgment which was delivered on 19.04.2005. We have
already quoted Section 307 of the Code which denotes that
pardon can be tendered at any time after commitment of a
2
case but before the judgment is pronounced. In view of the
same, inasmuch as the approver submitted his application
well before the judgment was delivered, i.e., on 19.04.2005,
the contention regarding delay on the part of PW-6 is liable to
be rejected.
30) It is also not in dispute that initially, PW-6 was one of the
13 accused persons charged with the offence of murder and in
the array of accused, he was shown as (A-12). Accordingly,
the prosecution is justified in taking the stand that the
approver (PW-6) was directly or indirectly concerned in or
privy to the offence of murder. In view of the same and in the
light of the language used in Section 307 of the Code, the
Courts below are right in entertaining the evidence of PW-6 as
approver. As regards the condition prescribed in Section 306
of the Code that the approver must make a full and true
disclosure of the whole of the circumstances, let us analyze his
statement whether he complied with the above said
requirement.
31) In his examination-in-chief, he had clearly stated that he
was one of the accused in the case and during investigation he
2
was arrested by the police. On completion of investigation, the
investigating agency submitted charge-sheet against him along
with others for trial. In categorical terms, he asserted that he
was aware of the whole incident which led to the killing of
Tapan Chakraborty and also asserted that he was also
connected with and involved in his murder along with others.
He highlighted that on 21.08.2000, there was a public meeting
organized by CPI (M) party at Santinagar. The deceased,
Tapan Chakraborty and other party leaders attended the said
meeting. In the year 2000, there was a student agitation at
Ratia Ferry Ghat against kidnapping of three students and one
labourer by the extremists. On this issue, the students had
blocked the road. The deceased, Tapan Chakraborty, being
the local leader of the CPI (M) party, resisted the students in
making agitation and blocking up the road. For that matter,
PW-6 along with other accused developed a grudge in their
minds to give Tapan Chakraborty a good lesson. On
30.08.2000, at about 7/8 p.m., a meeting was convened in the
house of the accused Tapan Das (A-5). All the accused
persons including PW-6 were present in the said meeting
2
wherein it was decided to eliminate Tapan Chakraborty as he
stood against the students' movement. He further highlighted
that two days back, prior to holding of meeting on 30.08.2000,
they saw posters hanging on the walls that a meeting of CPI
(M) would be held at Santinagar on 31.08.2000 at 3:00 p.m
where Ramakanta Paul (PW-10) and Tapan Chakraborty would
remain present. To materialize the plan chalked out in the
meeting held on 30.08.2000, 13 persons including PW-6 had
spread over in different groups in different places to eliminate
Tapan Chakraborty. Uttam Shil (A-8) was deputed on the
other side of the river to let them informed when Tapan
Chakraborty would be proceeding towards Bagan Bazar on
conclusion of meeting. Radha Kant Das (A-13), Ashim
Bhattacharjee (A-2), Bikash Das (A-6), Mrinal Das (A-4),
Shailendra Das (A-3) and PW-6 were waiting at Bagan Bazar.
Another group of persons consisting of Tapan Das (A-5),
Gautam Das (A-11), Somesh Das (A-7), Pradip Das (A-9) were
waiting in the house of Anil Das (A-1). All were keeping watch
and observing the situation till 4 p.m. Around 6 p.m., they
were informed by Anil Das (A-1) that the meeting at
2
Santinagar had been over and the participants of the said
meeting had started for the Ferry Ghat to cross the river. The
persons assembled in the house of Anil Das (A-1) started for
Ferry Ghat. On seeing them, another group including PW-6
waiting at Bagan Bazar also followed them. All the aforesaid
13 persons reached Ferry Ghat around 6.15 p.m. After
reaching there, they found the boat carrying Tapan
Chakraborty, Ramakanta Paul PW-10 and 9/10 other persons
in the middle of the river. As soon as Tapan Chakraborty and
others got down from the boat, one of the accused shouted to
attack him. While Tapan Chakraborty was washing his feet in
the river water, suddenly, PW-6 caught hold of him and
dragged him down on the side of the river. He fell on the
ground with his back side up. At that point of time, Tapan
Das (A-5) and Gautam Das (A-11) fired two rounds of bullet
from their pistols on Tapan Chakraborty. Simultaneously, a
bomb had exploded on the other side of the river. The
witnesses who were waiting in the passenger shed to escort
the victim rushed to the place of occurrence. On seeing them,
all the assailants fled towards south-east direction. PW-6
2
crossed the river along with others taking the route of Ratia to
conceal themselves. They were advised by Tapan Das (A-5)
and Gautam Das (A-11) to keep themselves confined in their
respective houses. On the following day, PW-6 came to know
from local news broadcasted by the All India Radio that Tapan
Chakraborty died following the gun shots.
32) Regarding his change of mind, PW-6 explained that he
became perplexed by the death of Tapan Chakraborty. He
further explained that out of repentance, he once made an
attempt to commit suicide by hanging himself at his residence
in the middle of the month of March, 2004. Thereafter, he
decided to divulge the whole incident leading to the killing of
Tapan Chakraborty before the Court. He also asserted that he
had decided to disclose the whole incident voluntarily on the
advise of the members of his family. He identified all the
accused persons in the Court by name and face.
33) In cross-examination, PW-6 deposed that the police
arrested him in connection with this case one day after the
occurrence. He was in police custody for eight days and,
thereafter, on expiry of police remand, he was granted bail. He
3
asserted that during his stay in police custody, he was not
interrogated by police. About his change of mind, in cross-
examination, he explained that since 31.08.2000 till mid of
March, 2004, he had been running amok. During the
aforesaid intervening period, he did not meet any people to
express his mental agony. He also asserted that he lost his
mental peace as the murder of Tapan Chakraborty was taken
place before his own eyes and he was also directly involved in
his killing. He denied that he deposed falsely. He also denied
that he was provoked by the CPI (M) party that if he turns to
be an approver, he would be given a suitable job.
34) A reading of the entire evidence of PW-6 makes it clear
that the reason for change of his mind for tendering pardon is
acceptable and in tune with the conditions prescribed in
Sections 306 and 307 of the Code. The trial Judge, who had
the liberty of noting his appearance and recorded his evidence,
believed his version which was rightly accepted by the High
Court. On going through his entire evidence, the conditions
stated in Sections 306 and 307 of the Code are fully complied
3
with and we accept his statement and concur with the
decision arrived at by the courts below.
Corroborative evidence with regard to the statement of
PW-6:
35) In the FIR, the following persons have been named as
accused relating to the occurrence, namely, Anil Das (A-1),
Ashim Bhattacharjee (A-2), Shailendra Das (A-3), Mrinal Das
(A-4), Tapan Das (A-5), Bikash Das (A-6), Somesh Das (A-7),
Uttam Shil (A-8), Pradip Das (A-9), Subal Deb (A-10), Gautam
Das (A-11), Ratan Sukladas (A-12) (turned approver) and
Radha Kant Das (A-13).
36) Ratan Sukladas who turned as an `approver' and was
examined as PW-6, named all the 13 accused (including
himself). He mentioned the following persons as accused,
namely, Anil Das (A-1), Ashim Bhattacharjee (A-2), Shailendra
Das (A-3), Mrinal Das (A-4), Tapan Das (A-5), Bikash Das (A-
6), Somesh Das (A-7), Uttam Shil (A-8), Pradip Das (A-9),
Subal Deb (A-10), Gautam Das (A-11), and Radha Kant Das
(A-13).
37) Among the 13 accused, we are concerned only with
Tapan Das (A-5) and Gautam Das (A-11) in these appeals, who
3
were convicted by the trial Court and their conviction was
confirmed by the High Court and Somesh Das (A-7), Mrinal
Das (A-4) and Anil Das (A-1), who were acquitted by the trial
Court and convicted by the High Court. Except the
abovementioned 5 accused persons, we are not concerned with
others. Tapan Das (A-5) was identified by Babul Dey (PW-1),
Nehar Ranjan Deb (PW-4), Bidhu Urang (PW-7) and Pranab
Chakraborty (PW-8). Somesh Das (A-7) was identified by
Babul Dey (PW-1) and Bidhu Urang (PW-7). Mrinal Das (A-4)
was identified by Babul Dey (PW-1) and Nehar Ranjan Deb
(PW-4). Anil Das (A-1) was identified by Nehar Ranjan Deb
(PW-4) and Pranab Chakraborty (PW-8). Gautam Das (A-11)
was identified by Babul Dey (PW-1), Nehar Ranjan Deb (PW-4),
Bidhu Urang (PW-7) and Pranab Chakraborty (PW-8). Though
Pradip Das (A-9) was identified by Babul Dey (PW-1), Nehar
Ranjan Deb (PW-4), Bidhu Urang (PW-7) and Pranab
Chakraborty (PW-8), inasmuch as his name has been deleted
from the array of the appellants vide this Court's order dated
16.09.2009, there is no need to consider his case in these
appeals.
3
38) Now let us analyse the witnesses relied on by the
prosecution.
Eye-witnesses in the boat
39) Babul Dey - PW-1 identified Somesh Das (A-7), Mrinal
Das (A-4), Tapan Das (A-5), Gautam Das (A-11), Ashim
Bhattacharjee (A-2), Subal Deb (A-10), Shailendra Das (A-3)
and Pradip Das (A-9). In his evidence, he deposed that Tapan
Chakraborty, the deceased, was known to him. He admitted
that he belongs to DYFI, which is the youth wing of CPI(M)
party. The deceased was the Vice-Chairman of Kalyanpur
Block and was also the Secretary of DYFI. He explained that a
meeting was held at Durgapur on 31.08.2000 which was
started at 3 p.m. and completed at 5 p.m. He along with
Tapan Chakraborty attended the said meeting. After
completion of the meeting, all the participants including him
left for Kalyanpur by crossing the river by a boat. At around
06:00 p.m., after crossing the river, when Tapan Chakraborty
was washing his feet in the river water, some miscreants
pushed him and they were also using abusive language
3
towards him. They opened gun fire in the air. On seeing this,
he along with others fled to the retiring shed nearby the river
where some members of the party were waiting for them. He
also noticed that the assailants were running towards north
and they were 15/16 in number. When he along with others
returned to the place of occurrence, they found Tapan
Chakraborty lying on the ground in injured condition. They
took Tapan Chakraborty to Kalyanpur Hospital in a mobile
police van. On the advise of the doctors, Tapan Chakraborty
was shifted to G.B. Hospital, Agartala. He admitted that he
did not go to G.B. Hospital. However, he came to learn that on
the way to G.B. Hospital, Tapan Chakraborty succumbed to
his injuries. He along with Ramakanta Paul (PW-10) and
others then went to their Party office and discussed the matter
and decided to lodge a complaint to the police. Accordingly,
their Secretary, Sunil Deb scribed an ejahar as per the version
of PW-1 and after writing the same, he read over the same to
him and after satisfying that it was written as per his version,
he put his signature therein. In the witness box, he identified
his signature which was marked as Ex.1. He also informed
3
the Court that the accused persons were the supporters of
Congress (I) party. He also clarified that two of the miscreants
were supporters of Amara Bengali Party.
(a) Babul Dey was examined as PW-1. In his evidence, he
narrated the entire events commencing from conspiracy
ending with gunshot on the deceased - Tapan Chakraborty.
Though it was pointed out that he had not stated all the
abovementioned details in the complaint, on going through the
same, we are satisfied that all relevant details have been
stated in the complaint and the omission to mention is only
negligible. Likewise, it was commended by the counsel for the
appellants that though there were some police personnel in
the police mobile van, PW-1 did not disclose the incident to
any of those police officials traveling in the said vehicle. For
this, PW-1 has explained that they took the injured to
Kalyanpur Hospital first and later on, in association with his
party supporters, he lodged a complaint. In such a situation,
it is but natural that the person who received gunshot injury
has to be admitted in the hospital and only thereafter anybody
could think of the next step including making a complaint to
3
the police. We are satisfied that there is no infirmity in the
conduct of PW-1 in not conveying anything to the police
personnel in the mobile van and even his interaction with his
party colleagues. PW-1 has also admitted that Tapan
Chakraborty was the Secretary of DYFI, because of which it
was argued that due to political rivalry, he had falsely
implicated the accused persons. In view of the above
discussion, we are not impressed upon such objection and
reject the same.
b) The other eye-witness is Nitai Das (PW-3), who was in the
boat. It was he, who identified Ratan Sukladas (A-12), Radha
Kant Das (A-13) and Bikash Das (A-6) as the members of
attacking group. He also admitted that the deceased Tapan
Chakraborty was known to him. Like PW-1, he also explained
that the meeting was held at Santinagar between 3:00 p.m. to
5:45 p.m. He along with Tapan Chakraborty and others
reached Santinagar through Ferry Ghat. They crossed the
river by boat and got down on the other side of the river and in
that process, according to him, he heard sound of gunshot
and simultaneously a bomb was hurled from the other side of
3
the river. Due to fear, they fled at a distance of 10 cubics from
the place of occurrence and some people who were waiting in
the passenger shed rushed to the spot. When he along with
others returned to the place of occurrence, he found Tapan
Chakbraborty lying on the ground in injured condition. Apart
from three persons mentioned above, he also stated that about
10/12 persons attacked Tapan Chakraborty. The miscreants,
after commission of offence, fled towards south-east direction.
Thereafter, they took him to Kalyanpur Hospital in a police
van. He was examined by the I.O. on the same night, that is,
at about 9.00 p.m., to whom also he disclosed the names of
the above said accused persons. There is no contradiction
with regard to the identification of the said three assailants.
Though counsel for the appellants has pointed out certain
omissions, on going through the same, we are satisfied that
these omissions were not at all material and the High Court
has rightly relied on and accepted his evidence.
c) Apart from eye-witnesses PW-1 and PW-3, another eye-
witness Benu Ranjan Dhupi (PW-11) was also present in the
boat. According to him, on the fateful day, that is, on
3
31.08.2000 around 3.00 p.m., he met Tapan Chakraborty at
Bagan Bazar who requested him to go to Santinagar well
ahead in connection with peace meeting to be held there and
to supervise and see that everything was in order. According
to him, as directed by Tapan Chakraborty, he reached
Santinagar at 3:00 p.m. He mentioned that Uttam Shil (A-8)
enquired from him whether Tapan Chakraborty would attend
the meeting. After concluding the meeting, Tapan
Chakraborty and others including PW-11 got into the boat to
cross the river. While he was getting down from the boat, he
heard hue and cry and some one saying "attack them attack
them". He also heard a sound of explosion of bomb on the
other side of the river and the sound of two rounds of fire.
Thereafter, he fled from the spot due to fear. According to
him, after 10 days of the aforesaid occurrence, he met
Ramakanta Paul (PW-10) at Bagan Bazar. His evidence shows
that he was also in the boat, however, he only mentioned that
accused Uttam Shil (A-8) was found near the venue of the
meeting and he narrated about the enquiry made by him
whether Tapan Chakraborty would attend the meeting. Even,
3
according to him, the said Uttam Shil (A-8) had disappeared
from the place of meeting.
d) The other three persons in the boat were Ganesh Kol
(PW-2), Ramakanta Paul (PW-10), and Prabir Biswas (PW-12).
No doubt, all the three witnesses turned hostile since they
refused to identify the assailants before the Court at the
instance of the prosecution. However, as rightly observed by
the High Court, they testified to the other parts of the
occurrence supporting the prosecution case that on the said
date and time, a group of miscreants had done to death the
victim Tapan Chakraborty. Though, their evidence may not be
fully supportable to the prosecution case, however, as
observed by the High Court, it is clear from their statements
that they accompanied the deceased in the same boat and
corroborated with other witnesses with regard to the factum of
murder though they did not identify the persons concerned. It
is settled position of law that the evidence of hostile witnesses
need not be rejected in its entirety but may be relied on for
corroboration.
4
Eye-witnesses in the passenger shed
40) Now, let us discuss the eye-witnesses who were present
in the passenger shed.
(a) The four eye-witnesses, namely, Nehar Ranjan Deb (PW-4),
Bidhu Urang (PW-7), Pranab Chakraborty (PW-8) and
Satyendra Tanti (PW-9) were waiting in the passenger shed on
the opposite bank of the river and when the assailants had
attacked the victim all of a sudden, they rushed to the spot.
In his evidence, Nehar Ranjan Deb (PW-4) admitted that Tapan
Chakraborty was known to him and he was his maternal
uncle. He was the Vice-Chairman of Kalyanpur Panchayat
Society. On 31.08.2000, in the evening, at around 06:30 p.m.,
he went to a tea stall at Bagan Bazar and found Pranab
Chakraborty (PW-8), younger brother of Tapan Chakraborty.
Pranab Chakraborty told him that Tapan had gone to
Santinagar to attend a meeting. He requested him to
accompany him to Ferry Ghat for escorting Tapan
Chakraborty as he was running a risk of his life because of
some untoward incident which took place in his house.
Satyendra Tanti (PW-9) and Bidhu Urang (PW-7) also
4
accompanied them. He further explained that they reached
Ferry Ghat at around 05:45 p.m. and took shelter in the
passenger shed as, at that time, it was drizzling. According to
him, while they were waiting in the passenger shed, he had
noticed Anil Das (A-1) proceeding hurriedly towards Bagan
Bazar from the side of Ferry Ghat. After 5/7 minutes, he had
seen about 10 youths proceeding towards Ferry Ghat from the
direction of Bagan Bazar. He mentioned the name of four
persons, namely, Gautam Das (A-11), Pradip Das (A-9), Tapan
Das (A-5) and Mrinal Das (A-4) who were among the youths.
Those persons were waiting in the Ferry Ghat. The distance of
Ferry Ghat from passenger shed would be 100 cubics. He
noticed Tapan Chakraborty and others getting down from the
boat and as soon as they got down, the miscreants dragged
Tapan Chakraborty. All the persons in the passenger shed
proceeded towards Ferry Ghat, at that time, they also heard
the sound of bursting of bomb as well as sound of gun fire.
They became frightened and retreated for a while, thereafter,
they proceeded towards Ferry Ghat. After reaching there, they
found Tapan Chakraborty lying on the ground with injuries.
4
They lifted him and brought him on the main road and with
the help of a Police Mobile Van they took him to Kalyanpur
Hospital. However, he admitted that he did not accompany
them. He asserted that after the commission of offence the
miscreants fled towards south. In cross-examination, he
admitted that the deceased was forefront leader of the CPI (M)
party. He denied the suggestion that the murder of Tapan
Chakraborty was the result of inter-Party rivalry.
(b) Next witness who was present in the passenger shed was
Bidhu Urang, examined as PW-7. In his examination-in-chief,
he stated that Tapan Chakraborty was murdered on
31.08.2000 by some miscreants belonging to UBLF extremists
group. He was killed at Santinagar Ferry Ghat at around
06:30 p.m. and according to him at the time of occurrence, he
was sitting in the passenger shed which is about 100 cubics
away from the place of occurrence. He also mentioned that
besides him Pranab Chakraborty (PW-8), Nahar Ranjan Deb
(PW-4), Satyendra Tanti (PW-9) were also present there. He
also admitted that at that time it was drizzling. In order to
protect themselves from the rain, they took shelter in the
4
passenger shed at around 05:30 p.m. He also stated in the
examination-in-chief about the meeting at Santinagar and
explained that the deceased Tapan Chakraborty went to
Santinagar to attend that peace meeting organized by DYFI.
He further explained that he along with others went to
Santinagar to escort Tapan Chakraborty. Like, PW-4, he also
narrated that while he was sitting in the passenger shed, he
saw a group of 12/14 persons proceeding towards Santinagar
Ferry Ghat, out of which, he recognized Tapan Das (A-5),
Gautam Das (A-11), Pradip Das (A-9) and Somesh Das (A-7).
At about 06:30 p.m., according to him, he noticed that Tapan
Chakraborty accompanied by about 15 persons crossing the
river in a boat. One Ramakant Paul (PW-10) was one of the 15
persons who accompanied Tapan Chakraborty. Suddenly, he
heard the sound of two gun shots and immediately when he
looked forward, he saw a group of persons running away
towards south-east direction. At once, he alongwith his
companions rushed to Ferry Ghat and found Tapan
Chakraborty in injured condition. They carried him upto main
road and then they took him in a police mobile van. He
4
asserted that the group of persons who were found running
away from the Ferry Ghat was the same whom he saw earlier
proceeding towards Ferry Ghat from Bagan Bazar. He
informed the Court that on 31.08.2000, at around 10:30 p.m.
one police officer seized blood stained earth from Santinagar
Ferry Ghat in his presence and drawn seizure list wherein he
signed. He admitted his signature found in the seizure list
which was marked as Ex.-3. One Sujit Das also signed the
seizure list along with him. He asserted that any two persons
of the group fired two shots on Tapan Chakraborty. He also
informed the Court that before he heard the sound of firing, he
saw a flash of fire within the circle comprising 12/14 persons.
The accused persons, namely, Pradip Das (A-9), Tapan Das (A-
5), Somesh Das (A-7) and Gautam Das (A-11) were identified
in the Court by name and face by PW-7. In cross-examination,
it is true that he informed the Court that he does not know
any person named Ratan Sukladas, (PW-6) approver.
(c) One Pranab Chakraborty was examined as PW-8. He was
one of the persons waiting in the passenger shed at the
relevant time. He admitted that Tapan Chakraborty was his
4
eldest brother. According to him, prior to his death, he held
many responsible posts in CPI (M) Party. Besides, he was the
Vice Chairman of the Kalyanpur Panchayat Society. He
informed the Court that on 31.08.2000, his brother was killed
by the miscreants at Santinagar Ferry Ghat. According to
him, on that day, around 05:15 p.m., Bidhu Urang (PW-7),
Nehar Ranjan Deb (PW-4), Satyendra Tanti (PW-9) and he
himself were sitting in the passenger shed which is about 100
cubics away from Santinagar Ferry Ghat. PW-8 also deposed
that they were waiting in the passenger shed to escort his
brother who was supposed to return from Santinagar after
attending a peace meeting. He explained that from Bagan
Bazar, they went straight to passenger shed. He also stated
that there was security threat on the life of his brother
because of which they used to accompany and escort him
whenever he go outside in connection with any party work.
When they were waiting in the passenger shed, it was drizzling
and at that time they saw a good number of persons
proceeding towards Ferry Ghat out of them he recognized
Tapan Das (A-5), Gautam Das (A-11), Pradip Das (A-9) and
4
Anil Das (A-1). He saw Anil Das (A-1) coming hurriedly from
the other side of the river. He deposed, as soon as Tapan
Chakraborty reached near the bank of the river he heard hue
and cry and at that time he also heard sound of two rounds of
fire. Thereafter, they rushed to the place of occurrence, and
then the miscreants ran away towards south-east direction.
On arriving at the place of occurrence, he found Tapan lying
on the ground with his upside down with two bullet injuries
one on the left side of his back and another on the back of his
head. The wounds were bleeding profusely. With the help of
others, he took his brother up to the main road and thereafter
took him to the hospital in a police van. As the condition of
his brother was alarming, he was shifted to GB Hospital,
Agartala from Kalyanpur hospital. He identified Anil Das (A-
1), Pradip Das (A-9), Gautam Das (A-11) in the Court by name
and face. In cross-examination, he denied the suggestion that
he could not recognize Tapan Das (A-5), Pradip Das (A-9) and
Gautam Das (A-11). He also mentioned that Ramakanta Paul
(PW-10), Prabir Biswas (PW-12), Nilai Das (PW-3), Benu
Ranjan Dhupi (PW-11), Sujit Das, Subrata Das, Rajesh Das
4
were in the boat along with his brother while crossing the river
(d) Another witness from the passenger shed was Satyendra
Tanti (PW-9). Like other witnesses, namely, PWs 4, 7 and 8,
he also explained the said incident. He admitted that Tapan
Chakraborty was the Vice Chairman, Kalyanpur Panchayat
Society and held several responsible posts in the CPI (M) party.
He also admitted that Tapan was related to his family. Since,
he informed the Court that he did not notice any of the
persons while coming out of the passenger shed, he was
declared as a hostile witness from the side of the prosecution.
Though PW-9 turned hostile as stated earlier, he admitted that
he along with Pranab Chakraborty (PW-8), Nehar Ranjan Deb
(PW-4) and Bidhu Urang (PW-7) were sitting in the passenger
shed with a view to escort his brother Tapan Chakraborty.
41) The analysis of statement of various persons,
particularly, eye-witnesses clearly strengthen the case of PW-
6, approver, in all aspects including conspiracy, planning to
attack the deceased for his statement about the students'
movement, actual incident, role played by the assailants and
subsequent events after the gunshot till the death of the
4
deceased Tapan Chakraborty. We are satisfied that by these
statements, the prosecution has strengthened its case through
PW-6 approver and there is no reason to disbelieve his version.
Reliance on the hostile witness
42) In the case on hand Ganesh Kol (PW-2), Satyendra Tanti
(PW-9), Ramakanta Paul (PW-10) and Prabhir Biswas (PW-12)
were declared as hostile witnesses. It is settled law that
corroborated part of evidence of hostile witness regarding
commission of offence is admissible. The fact that the witness
was declared hostile at the instance of the Public Prosecutor
and he was allowed to cross-examine the witness furnishes no
justification for rejecting en bloc the evidence of the witness.
However, the Court has to be very careful, as prima facie, a
witness who makes different statements at different times, has
no regard for the truth. His evidence has to be read and
considered as a whole with a view to find out whether any
weight should be attached to it. The Court should be slow to
act on the testimony of such a witness, normally, it should
look for corroboration with other witnesses. Merely because a
witness deviates from his statement made in the FIR, his
4
evidence cannot be held to be totally unreliable. To make it
clear that evidence of hostile witness can be relied upon at
least up to the extent, he supported the case of prosecution.
The evidence of a person does not become effaced from the
record merely because he has turned hostile and his
deposition must be examined more cautiously to find out as to
what extent he has supported the case of the prosecution.
43) In our case, eye witnesses including the hostile
witnesses, firmly established the prosecution version. Five
eye-witnesses, namely, PW-1, PW-4, PW-6, PW-7 and PW-8
clearly identified two convicts-appellants, Tapan Das (A-5) and
Gautam Das (A-11). PWs 1, 4, 7 and 8 identified accused
Pradip Das (A-9). PWs 1 & 7 identified accused Somesh Das
(A-7). PWs 1 & 4 identified Mrinal Das (A-4). PWs 4 & 8
identified Anil Das (A-1). It is clear that 6 accused persons
including two convicts-appellants had been identified by more
than one eye-witnesses. It is also clear that 6 accused could
have been identified by the eye witnesses though all of them
could not have been identified by the same assailants.
However, it is clear that two or more than 2 eye-witnesses
5
could identify one or more than one assailants. The general
principle of appreciating evidence of eye witnesses, in such a
case is that where a large number of offenders are involved, it
is necessary for the Court to seek corroboration, at least, from
two or more witnesses as a measure of caution. Likewise, it is
the quality and not the quantity of evidence to be the rule for
conviction even where the number of eye witnesses is less
than two.
44) It is well settled that in a criminal trial, credible evidence
of even hostile witnesses can form the basis for conviction. In
other words, in the matter of appreciation of evidence of
witnesses, it is not the number of witnesses but quality of
their evidence. As rightly observed by the High Court, there
are only six accused persons namely, Tapan Das (A-5),
Gautam Das (A-11), Pradip Das (A-9), Mrinal Das (A-4),
Somesh Das (A-7) and Anil Das (A-1) identified by two or more
eye witnesses while Tapan Das (A-5) and Gautam Das (A-11)
were recognized by PWs 1, 4, 7 and 8 corroborated by PW-6
(approver). Somesh Das (A-7) was recognized by PWs-1 & 7,
Mrinal Das (A-4) by PWs 1 & 4 and Anil Das (A-1) by PWs 4 &
5
8, all of them being corroborated by PW-6 (approver). If PW-6
(approver) is included, there are three eye-witnesses who could
identify six offenders including two convicts-appellants.
Inasmuch as we were taken through the entire evidence of the
abovementioned witnesses, we fully endorse the view
expressed by the High Court.
45) Now we have to find out whether the High Court is
justified in interfering with the order of acquittal insofar as
accused Anil Das (A-1), Mrinal Das (A-4), Somesh Das (A-7)
and Pradip Das (A-9) are concerned, in the light of the
principles which we have explained in the earlier part of our
judgment. The trial Court, after finding that the factum of
conspiracy as disclosed by the approver remains
unsubstantiated for want of independent corroborating
evidence, acquitted them. Since the High Court has reversed
the said decision of acquittal and convicted the accused
persons relying on Section 34 IPC, let us find out whether the
High Court is justified in upsetting the order of acquittal into
conviction. Section 34 IPC reads as under:
"34. Acts done by several persons in furtherance of
common intention.- When a criminal act is done by several
5
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."
The reading of the above provision makes it clear that the
burden lies on prosecution to prove that the actual
participation of more than one person for commission of
criminal act was done in furtherance of common intention at a
prior concept. Further, where the evidence did not establish
that particular accused has dealt blow the liability would
devolve on others also who were involved with common
intention and such conviction in those cases are not
sustainable. A clear distinction made out between common
intention and common object is that common intention
denotes action in concert and necessarily postulates the
existence of a pre-arranged plan implying a prior meeting of
the minds, while common object does not necessarily require
proof of prior meeting of minds or pre-concept. Though there
is substantial difference between the two sections, namely,
Sections 34 and 149 IPC, to some extent they also overlap and
it is a question to be determined on the facts of each case.
5
46) There is no bar in convicting the accused under
substantive section read with Section 34 if the evidence
discloses commission of an offence in furtherance of the
common intention of them all. It is also settled position that
in order to convict a person vicariously liable under Section 34
or Section 149 IPC, it is not necessary to prove that each and
every one of them had indulged in overt acts in order to apply
Section 34, apart from the fact that there should be two or
more accused. Two facts must be established, namely a)
common intention b) participation of accused in the
commission of an offence. It requires a pre-arranged plan and
pre-supposes prior concept. Therefore, there must be prior
meeting of minds. It can also be developed at the spur of the
moment but there must be pre-arrangement or pre-meditated
concept. As rightly observed by the High Court, though the
trial Court was of the view that the evidence of an approver
contains full and correct version of the incident so far as
participation of the accused Tapan Das (A-5) and Gautam Das
(A-11), however, there is no plausible reason by the trial Court
as to why the other part of the statement of the approver could
5
not be believed. We have already pointed out that in order to
seek the aid of Section 34 IPC, it is not necessary that
individual act of the accused persons has to be proved by the
prosecution by direct evidence. Again, as mentioned above,
common intention has to be inferred from proved facts and
circumstances and once there exist common intention, mere
presence of the accused persons among the assailants would
be sufficient proof of their participation in the offence. We
agree with the conclusion of the High Court that the trial
Court failed to explain or adduce sufficient reasons as to why
the other part of the evidence that the accused persons named
by the approver were found present in the place of occurrence
could not be believed for the purpose of invoking Section 34
when two or more eye-witnesses corroborated the testimony of
approver (PW-6) specifically naming six accused persons
including the two convicted appellants.
47) The existence of common intention amongst the
participants in the crime is the essential element for
application of Section 34 and it is not necessary that the acts
of several persons charged with the commission of an offence
5
jointly must be the same or identically similar. We have
already pointed out from the evidence of eye-witnesses as well
as the approver (PW-6) that one Uttam Shil (A-8) was deployed
at the place of meeting at Santinagar for the purpose of giving
intimation to other accused persons about the movement of
the deceased. It is also seen from the evidence that one more
accused was stationed on the shore of the river near Bagan
Bazar. It is also seen from the evidence that after the meeting,
the boat carrying Tapan Chakraborty and other eye-witnesses
was about to reach Bagan Bazar shore, accused Anil Das (A-1)
who was deployed there suddenly left towards Bagan Bazar
and within few minutes 10 accused persons rushed to the
boat from Bagan Bazar. Thereafter, the occurrence took place.
The materials placed by the prosecution, particularly, from the
eye-witnesses, the common intention can be inferred among
the accused persons including the six persons identified by
the eye-witnesses. If we consider the case of the prosecution
in the light of the disclosure made by the approver (PW-6),
coupled with the statement of eye-witnesses, it is clear that
the 13 assailants had planned and remained present on the
5
shore of the river to eliminate Tapan Chakraborty. In view of
these materials, the High Court is right in applying Section 34
IPC and basing conviction of six accused persons including the
two convicted appellants that is Tapan Das (A-5), Gautam Das
(A-11), Pradip Das (A-9), Somesh Das (A-7), Mrinal Das (A-4)
and Anil Das (A-1).
Medical evidence:
48) The Doctor who conducted the post mortem on the dead
body was examined as PW-14 and his report has been marked
as Ex.7. The said report shows three fire arm wounds on the
dead body of the deceased. One, measuring 0.75 cm. in
radius over upper part of left anterior chest wall at posterior
auxiliary plane, two, lacerated injury 3 cms. X .5 cm x bone
deep occipital region, and three, lacerated injury, 4 cm x 1 cm
x bone deep over occipital region of skull. PW-14 has
categorically stated that the first injury was sustained by the
deceased on his back. According to him, injury Nos. 2 and 3
might be received by the deceased by the same bullet if the
bullet had split. We also verified the post mortem examination
report (Ex.7) and the medical evidence of PW-14 and find no
5
inconsistency between the contents in his report (Ex. 7), his
evidence as PW-14 and the ocular evidence of the approver
(PW-6). As rightly observed by the trial Court and the High
Court, the ocular version i.e., evidence of the approver (PW-6)
stands corroborated by the medical evidence of PW-14 and
(Ex.7). We concur with the said conclusion.
49) Though Mr. Sidharth Luthra, learned senior counsel
appearing for the appellants pointed out certain contradictions
in the statement of witnesses with their previous statements
recorded during investigation and with all their statements in
the Court, on verification, we are satisfied that those
contradictions, if any, are only minimal and it would not affect
the claim of the prosecution case. We have already discussed
elaborately about the identification of the assailants by the
prosecution witnesses including the approver (PW-6). Though
it was pointed out by the learned senior counsel for the
appellants that none of the seven witnesses other than
approver (PW-6) could recognize all the assailants, in the
earlier paragraphs, we have pointed out that each witness
identified at least two assailants and approver (PW-6) has
5
identified all of them. In a case of this nature where large
number of persons committed the crime, it is but natural that
due to fear and confusion a witness cannot recognize and
remember all the assailants. If any witness furnishes all the
details accurately, in that event also it is the duty of the Court
to verify his version carefully.
Conclusion
50) As discussed earlier, the statement of approver (PW-6)
inspires confidence including the conspiracy part which gets
full support from the narration of the occurrence given by the
eye-witnesses, more particularly, as to the deployment of some
of the offenders for reporting to others about the movement of
the victim. As rightly pointed out by the High Court, there is
nothing wrong in accepting his entire statement and true
disclosure of the incident coupled with corroboration of his
evidence with the eye witnesses. We fully agree with the
discussion and ultimate conclusion arrived at by the High
Court and unable to accept any of the contentions raised by
the learned senior counsel for the appellants.
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51) Under these circumstances, we confirm the ultimate
decision arrived at by the High Court. Consequently, both the
appeals fail and are accordingly dismissed as devoid of any
merit.
...........................................J.
(P. SATHASIVAM)
...............................................J.
(H.L. GOKHALE)
NEW DELHI;
SEPTEMBER 5, 2011.
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