Mrinal Das & Ors vs State Of Tripura

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

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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

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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

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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

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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,

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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

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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

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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

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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

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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

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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 &

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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

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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

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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.

5 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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