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TMI Blog2011 (9) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ₹ 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttam 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 ₹ 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 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 ₹ 3000/- each, in default, to suffer a further term of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. 15. While considering the validity of approver's testimony and tests of credibility, this Court, in Sarwan Singh S/o Rattan Singh v. 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusion 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 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 foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 21. In Sheshanna Bhumanna Yadav v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 implicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 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 sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint to 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 the river. Due to fear, they fled at a distance of 10 cubics from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laborately 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 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 vTMIictim. As rightly pointed out by the High Court, there is nothing wrong in accepting his entire statement and tru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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