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Saturday, February 6, 2016

Section 34 IPC is conscious mind of persons participating in the criminal action to bring about a particular result.=whether there was any common intention or not depends upon inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.there was prior concert and that the appellants have acted in furtherance of common intention. As seen from the evidence of PW-6, all the appellants and another co-accused Sk. Kochi were doing illegal business of extorting money from the flat owners. On the date of occurrence, all the appellants and another co-accused Sk. Kochi came together and Sudip Kumar Sen @ Biltu (A-3) started abusing the deceased and Apu Chatterjee (A- 6) exhorted others that if the men of Khoka were not killed, there would be no peace. On such exhortation, Tapas Das and Sankar Das (A-2 and A-4) caught hold of the deceased and Goutam Ghosh and Sk. Kochi (A-1 and A-5) fired at the deceased. Facts and circumstances clearly establish meeting of minds and common intention of the appellants in committing the murder of Saikat Saha and the appellants were rightly convicted under Section 302 read with Section 34 IPC. No ground for interference under Article 136 of the Constitution of India is made out.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO.  17    of 2016
                 (Arising out of SLP (Crl.) No.2600 of 2013)

SUDIP KR. SEN @ BILTU                                     ..Appellant
                                   Versus
STATE OF WEST BENGAL & ORS.                             ..Respondents
                                    WITH
                     CRIMINAL APPEAL NO.  19    of 2016
                 (Arising out of SLP (Crl.) No.4506 of 2013)
GOUTAM GHOSH                                              ..Appellant
                                   Versus
STATE OF WEST BENGAL                                  ..Respondent

                      CRIMINAL APPEAL NO.  21   of 2016
                 (Arising out of SLP (Crl.) No.5362 of 2013)
APU CHATTERJEE @ SOUMITRA                               ....Appellant
                                   Versus
STATE OF WEST BENGAL                                       ..Respondent

                     CRIMINAL APPEAL NO.  23    OF 2016
                 (Arising out of SLP (Crl.) No.1370 of 2014)
SANKAR DAS @ BHAI                                                …Appellant
                                   Versus
STATE OF WEST BENGAL                                    …Respondent
                                     AND
                     CRIMINAL APPEAL NO.  25    OF 2016
                 (Arising out of SLP (Crl.) No.8098 of 2014)
TAPAS DAS @ BHAMBAL                                        …Appellant
                                   Versus
STATE OF WEST BENGAL                                    …Respondent

                               J U D G M E N T

R. BANUMATHI, J.


      Delay condoned.  Leave granted.
2.    These appeals arise  out  of  the  common  judgment  dated  24.09.2012
passed by the High Court of Calcutta dismissing Criminal  Appeal  No.544  of
2004 filed by the appellants and thereby affirming  the  conviction  of  the
appellants under Section 302 read with Section 34 IPC and sentence  of  life
imprisonment and a fine of rupees five thousand imposed on each of them.
3.    Briefly stated case of the prosecution is that on 13.01.2002 at  about
08.30 p.m., complainant-PW1-Gora Das was having tea alongwith  some  of  his
friends at the shop of one Bablu Pal-PW5 at Shakherbazar. Sandipan Majumdar-
PW6 sitting on his motorcycle was also having tea in front of tea  stall  of
PW-5.  At that time,  the  appellants  came  in  a  body  to  the  place  of
occurrence. At first, appellant-Sudip Kumar Sen @  Biltu  (A-3)  abused  the
deceased-Saikat Saha and asked him as to why he did not  meet  Jishu  da  in
the court as he was asked to  do  so  at  several  occasions.  Appellant-Apu
Chatterjee @ Soumitra (A-6) said that if the men of Khoka  were  not  killed
then there would be no peace. On such exhortation,  appellants-Tapas  Das  @
Bhambal (A-2) and Sankar Das @  Bhai  (A-4)  caught  hold  of  Saikat  Saha-
deceased and appellants Goutam Ghosh (A-1) and Sk. Kochi @ Sk.  Mobarak  (A-
5) fired at him and Saikat Saha sustained two gunshot injuries in the  right
chest. Gora Das-PW1 and Sandipan Majumdar-PW6 had immediately taken  injured
Saikat Saha to Calcutta Medical Research  Institute.  Dr.  Debasish  Pal-PW9
examined Saikat Saha and declared  that  he  was  brought  dead  and  issued
Injury Report (Ex.4) and Death Certificate (Ex-P4/1).
4.    Gora Das-PW1 lodged the complaint on 14.01.2002 at  1.45  a.m.  before
Thakurpukur Police Station, on the basis of  which  FIR  was  registered  in
Case No.12 of 2002 under Section 302 read with Section 34 IPC  and  Sections
25  and  27  of  the  Arms  Act  against  unknown  persons.   A.  K.  Ghosh-
Investigating Officer-PW13 had taken up the investigation  and  visited  the
spot and examined the available witnesses  including  PW6-Sandipan  Majumdar
who informed the police that he had witnessed the event and PW-6 also  named
the accused.  On his statement, the appellants and accused Sk. Kochi  @  Sk.
Mobarak and one Jishu Jain were arrested.  After investigation,  chargesheet
was filed against the appellants and other accused under  Section  302  read
with Section 34 IPC, Section 120-B IPC and Sections 25 and 27  of  the  Arms
Act.
5.    To  prove  the  charges  against  the  accused,  prosecution  examined
thirteen witnesses and adduced documentary evidence.  Upon  appreciation  of
evidence and observing  that  PW-6  is  a  trustworthy  witness,  Additional
Sessions Judge,  Alipore  convicted  the  appellants  and  Sk.  Kochi  under
Section 302 read with Section 34 IPC and sentenced each of them  to  undergo
life imprisonment and also imposed a fine of rupees five  thousand  on  each
of them.  The trial court acquitted the co-accused Jishu  Jain  of  all  the
charges levelled against him.  Aggrieved by the verdict of  conviction,  the
appellants filed appeal before the High Court. The High Court vide  impugned
judgment  dated  24.09.2012  dismissed  the  appeal  thereby  affirmed   the
conviction and sentence  imposed  on  the  appellants  as  aforesaid.  Being
aggrieved, the appellants-Goutam Ghosh (A-1), Tapas  Das  @  Bhambal  (A-2),
Sudip Kr. Sen @ Biltu (A-3), Sankar Das @ Bhai (A4)  and  Apu  Chatterjee  @
Soumitra (A-6) are before us.  Accused Sk. Kochi @  Sk.  Mobarak  (A-5)  has
not challenged the impugned judgment.
6.          Learned counsel for  the  appellants  contended  that  both  the
courts below failed to take into account the serious flaws,  inconsistencies
and  contradictions  in  the  statement  of  prosecution   witnesses   which
according to the appellants,  practically  demolished  the  version  of  the
prosecution as propounded by the testimony of   PW-6. It was submitted  that
in the cross-examination, PW-1 categorically stated  that  at  the  time  of
occurrence he and his friends ran to the spot which is at a distance of  few
yards from the tea stall and therefore PW-6 could  not  have  witnessed  the
occurrence sitting on the motor cycle and taking tea  along  with  PW-1  and
version of   PW-6  is  totally  contradictory  to  the  statement  of  PW-1.
Raising doubts as to the credibility of testimony of PW-6, it was  submitted
that PW-6 is said to have accompanied PW-1 in taking  the  deceased  to  the
hospital, he did not reveal the identity of the assailants to PW-1  and  not
even at the time of lodging the FIR which  was  registered  against  unknown
persons.
7.           Per  contra,   learned   counsel   for   the   respondent-State
contended that the culpability of the appellants have  been  proved  to  the
hilt by  the  evidence  of  PW-6  who  was  a  natural  eye-witness  to  the
occurrence and that he was standing outside the  tea  stall  and  was  in  a
vantage position to see the assailants and witness the occurrence.   It  was
further submitted that the courts below recorded concurrent findings to  the
credibility of PW-6 and there is no ground warranting interference with  the
conviction of the appellants.
8.          We  have  considered  the  rival  contentions  and  perused  the
impugned judgment and material on record.
9.          Sandipan Majumdar-PW6  has  stated  that  on  the  date  of  the
incident i.e. on 13.01.2002 at about 8.30 p.m., while he was taking  tea  at
the tea stall at Shakerbazar, Saikat Saha,  PW1-Gora  Das  and  others  were
also taking tea there.  PW-6 had categorically stated  that  the  assailants
armed with firearms came together and Sudip Kumar Sen (A-3) started  abusing
Saikat Saha and questioned him as to why he did not meet  Jishu  da  in  the
court inspite of several reminders. Apu Chatterjee (A-6) shouted that  there
will be no peace if the men of Khoka were not killed.  On such  exhortation,
Tapas Das (A-2), Sankar Das (A-4) caught hold of deceased and  Goutam  Ghosh
(A-1) and Sk. Kochi (A-5) fired  at  Saikat  Saha.   PW-6  stated  that  the
appellants were doing illegal business of collecting  money  from  the  flat
owners in the locality and an altercation took place over  the  said  matter
and PW-6 further stated that  the  appellants  also  used  to  come  to  the
deceased and thus he knew all of them.  PW-6 was examined by the  police  on
the very next day i.e.  on  14.01.2002  and  in  his  statement  before  the
police,  PW-6  named  the  appellants-accused  except  Jishu  Jain  as   the
assailants.  PW-6 was a natural eye-witness to the incident. Throughout  the
searching cross-examination,  PW-6  remained  consistent  and  his  evidence
remained unshaken. That PW-6 is a natural witness is  also  borne  out  from
the fact that PW-6  accompanied  PW1-Gora  Das  in  immediately  taking  the
deceased to the hospital and the same is  evident  from  the  Injury  Report
(Ex.4) and Death Certificate (Ex-4/1) issued by PW9-Dr.  Debasish Pal  which
clearly mention that the deceased was brought to the hospital by   PW-1  and
PW-6.
10.         Complainant-Gora Das (PW-1), though not  named  the  assailants,
in his evidence stated that while he was taking tea  in  the  tea  stall  of
Bablu Pal (PW-5) situated at Shakherbazar Behala  at  about  8.30  p.m.,  he
heard sound of the firearm and when  he  ran  to  the  spot,  he  found  the
deceased-Saikat Saha lying with bleeding injuries and that he along with PW-
6 took the injured to Calcutta  Medical  Research  Institute.   Evidence  of
Pinku Biswas-PW2 is also to the same effect that he heard the sound  of  two
shots and there was chaos in the street and shutters  were  closed  down  by
shopkeepers and after sometime when people came out, they  saw  Saikat  Saha
with gunshot injuries. Evidence of Paritosh Pal-PW3  and  Gora  Das-PW1  who
are the nearby shop owners is also to the same effect.  Though PWs  1  to  4
have not named the assailants,  their  evidence  shows  that  there  was  an
occurrence in which Saikat Saha was  shot  by  the  assailants  which  lends
assurance to the evidence of PW-6.   Evidence  of  PW-6  that  the  deceased
sustained two gunshot injuries is also supported  by  the  medical  evidence
i.e. Injury Report (Ex.4) and  Death  Certificate  (Ex.4/1)  issued  by  Dr.
Debasish Pal (PW-9).
11.         It is well-settled that the court may act on a  testimony  of  a
single witness though uncorroborated, provided that the testimony of  single
witness is found reliable.  Trial court which had the opportunity of  seeing
and hearing PW-6 found him wholly reliable and  trustworthy  and  held  that
evidence of Sandipan Majumdar-PW6 cannot be  doubted  as  far  as  the  role
attributed to A-1 to A-6 except Jishu Jain is concerned, which was  affirmed
by the High Court.  We find no  ground  to  interfere  with  the  concurrent
finding recorded by the Courts below as to the reliability of  PW-6  and  to
record the conviction.
12.         Observing that there is no impediment for  recording  conviction
based on the testimony of a  single  witness  provided  it  is  reliable  in
Prithipal Singh & Ors. vs. State of Punjab & Anr.,         (2012) 1 SCC  10,
it was observed as under:-
“49. This Court has consistently held that as a general rule the  court  can
and may act on the testimony of a  single  witness  provided  he  is  wholly
reliable. There is no legal impediment in convicting a person  on  the  sole
testimony of a single witness. That is the  logic  of  Section  134  of  the
Evidence Act. But if there are doubts about the testimony,  the  court  will
insist on corroboration. In fact, it is not the number or the quantity,  but
the quality that is material. The time-honoured principle is  that  evidence
has to be weighed and not counted. The test is whether the  evidence  has  a
ring of truth, is cogent, credible and trustworthy or otherwise.  The  legal
system has laid emphasis on value, weight and quality  of  evidence,  rather
than on quantity, multiplicity or plurality of witnesses. It is,  therefore,
open to a competent court  to  fully  and  completely  rely  on  a  solitary
witness and record conviction. Conversely, it  may  acquit  the  accused  in
spite of testimony of several witnesses if it is  not  satisfied  about  the
quality of evidence.” [See Vadivelu Thevar v. State of Madras, AIR  1957  SC
614, Sunil Kumar v. State (Govt. of NCT of Delhi, (2003) 11 SCC 367,  Namdeo
v. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal  v.  State
of W.B., (2010) 12 SCC 91]

13.         The appellants are convicted for the offence under  Section  302
read with Section 34 IPC. Learned counsel for  appellants–accused (A-2 to A-
4 and A-6) submitted that accused Sudip Kumar Sen (A-3) and  Apu  Chatterjee
(A-6) are said to have abused the deceased and Tapas Das  (A-2)  and  Sankar
Das (A-4) are alleged to have caught hold of the deceased and  there  is  no
evidence that A-2 to A-4 and A-6 have shared common intention with other co-
accused to fire at the deceased and therefore conviction  of  these  accused
under Section 302 read with Section 34 IPC is not sustainable.
14.         Section 34 IPC embodies the principle of joint liability in  the
doing of a criminal act and essence of that liability is  the  existence  of
common intention. Common intention implies acting in concert  and  existence
of a pre-arranged plan which  is  to  be  proved/inferred  either  from  the
conduct of the accused persons or from attendant  circumstances.  To  invoke
Section 34 IPC, it must be established that the criminal  act  was  done  by
more than one person in furtherance of common intention  of  all.  It  must,
therefore, be proved that:- (i) there was common intention on the  part   of
several persons to  commit  a  particular  crime  and  (ii)  the  crime  was
actually committed by them in furtherance of that common  intention.  Common
intention implies pre-arranged plan. Under Section 34 IPC, a pre-concert  in
the sense of a distinct previous plan is not necessary  to  be  proved.  The
essence of liability under Section 34  IPC  is  conscious  mind  of  persons
participating in the criminal action to bring  about  a  particular  result.
The question whether there was any common  intention  or  not  depends  upon
inference to be drawn from the proved facts and circumstances of each  case.
The totality of the  circumstances  must  be  taken  into  consideration  in
arriving at the conclusion whether the accused had  a  common  intention  to
commit an offence with which they could be convicted.
15.         Considering the facts and circumstances of the case in hand,  it
is evident that there was prior concert and that the appellants  have  acted
in furtherance of common intention.  As seen from the evidence of PW-6,  all
the appellants and another co-accused Sk. Kochi were doing illegal  business
of extorting money from the flat owners.  On the  date  of  occurrence,  all
the appellants and another co-accused Sk.  Kochi  came  together  and  Sudip
Kumar Sen @ Biltu (A-3) started abusing the deceased and Apu Chatterjee  (A-
6) exhorted others that if the men of Khoka were not killed, there would  be
no peace. On such exhortation, Tapas  Das  and  Sankar  Das  (A-2  and  A-4)
caught hold of the deceased and Goutam Ghosh and Sk.  Kochi  (A-1  and  A-5)
fired at the deceased. Facts and circumstances clearly establish meeting  of
minds and common intention of the appellants in  committing  the  murder  of
Saikat Saha and the appellants were  rightly  convicted  under  Section  302
read with Section 34 IPC.  No ground for interference under Article  136  of
the Constitution of India is made out.
16.          In  the  result,  all  the  appeals  fail  and  are   dismissed
accordingly.

                                                              ……………………..CJI.
                                                               (T.S. THAKUR)



                                                               ………………………..J.
                                        (R. BANUMATHI)


New Delhi;
January  07, 2016

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