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
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
