Supreme Court of India
MRINAL DAS & ORS.versusTHE STATE OF TRIPURA
- Citation
- 2011 INSC 650
- Decided
- 5 September 2011
- Disposal
- Dismissed
- Bench
- P SATHASIVAM
Holding
The approver's testimony, being reliable and corroborated by independent eye‑witness and medical evidence, justifies conviction of the six accused under Section 302 read with Section 34 IPC, and the High Court's interference with the acquittals is affirmed.
Summary
The case involved the murder of Tapan Chakraborty on 31 August 2000, for which thirteen persons were charged. One accused, Ratan Sukladas (A‑12), applied for and was granted pardon, becoming an approver whose testimony formed the core of the prosecution's case. The trial court convicted only two accused (A‑5 and A‑11) and acquitted the rest; the High Court set aside the acquittals of four others, convicting them under Section 302 read with Section 34 IPC. The Supreme Court examined the validity of the approver's testimony, the requirement of corroboration for accomplice evidence, the power to tender pardon under the CrPC, and the standards for interfering with an acquittal. It held that the approver's statement was reliable, properly corroborated by eye‑witnesses and medical evidence, and that the High Court was correct in applying Section 34 to infer common intention among the six accused. Consequently, the Supreme Court dismissed both appeals, upholding the convictions.
Issues considered
- The admissibility and weight of an approver's (accomplice) testimony without independent corroboration.
- Whether the delay in tendering pardon under Sections 306/307 CrPC invalidates the approver's evidence.
- The standards for appellate courts to interfere with an order of acquittal.
- The applicability of Section 34 IPC (common intention) to the facts of the case.
- The evidentiary value of hostile witnesses in a murder trial.
Legislation cited
- Arms Act, 1959s. 27
- Code of Criminal Procedure, 1973s. 306, s. 307, s. 308
- Indian Evidence Act, 1872s. 114, s. 133
- Indian Penal Code, 1860s. 1208, s. 149, s. 302, s. 34
Subjects
approveraccomplice testimonysection 34 IPCcommon intentiontender of pardonCrPCEvidence Acthostile witnessappeal against acquittalmurder conviction
Judgment
[2011] 14 (ADDL.) S.C.R. 411
MRINAL DAS & ORS. A .
V.
THE STATE OF TRIPURA
(CRIMINAL APPEAL NO. 1994 OF 2009)
SEPTEMBER 05, 2011
B
[P. SATHASIVAM AND H.L. GOKHALE, JJ.]
Penal Code, 1860 - s.302 rlw s.34 - Murder - 13
accused- Prayer of A-12 for grant of 'pardon' and to treat him
as an 'approver' allowed by trial court - Disclosure made by C
approver (A-12), who was examined as PW-6 - Trial Court
convicted A-5 and A-11 u/s.302 but acquitted the remaining
ten accused - On appeal, High Court set aside acquittal of
A-4, A-7, A-9 and A-1 and convicted them u/ss. 302134 and
also affirmed conviction of A-5 & A-11 uls.302 - Justification D
of - Held: Justified - The statement of approver (PW-6) was
confidence inspiring and as rightly pointed out by the High
Court, there was nothing wrong in accepting his entire
statement - The analysis of statement of various persons,
particularly, eye-witnesses clearly strengthen the case of PW- E
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
deceased -As rightly observed by the trial Court and the High F
Court, the ocular evidence of the approver (PW-6) stood
corroborated by the medical evidence of PW-14 (the doctor
who conducted post mortem) and the post. mortem
examination report (Ex. 7) - There was common intention
among the accused persons including the six persons G
1 identified by the eye-witnesses - High Court was right in
applying s.34 and basing·conviction of six accused persons
i.e. A-5, A-11, A-9, A-7, A-4 and A-1.
Evidence Act, 1872- s.133 r/w Illustration (b) to s.. 114 -
411 H
412 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A Evidentiary value of "approver" and its acceptability with or
without corroboration - Held: 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
B in material particulars - 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.
c Code of Criminal Procedure, 1973 - ss.306, 307 and
308 - Tender of pardon to approver/accomplice - Power to
direct tender of pardon - Held: 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
D in commission of crime could be brought home - An
accomplice who has been granted pardon uls.306 or s.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
E 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
F refuses to comply with the condition on which the tender was
made and the Public Prosecutor gives his certificate uls.308
of the Code to that effect, the protection given to him can be
lifted - Once an accused is granted pardon u/s. 306, he
ceases to be an accused and becomes witness for the
G prosecution.
Code of Criminal Procedure, 1973 - ss. 306, 307 and
308 - Tender of pardon to approver/accomplice - Delay in
tendering pardon - Effect of - Held: Pardon can be tendered
H at any time after commitment of a case but before the
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 413
judgment is pronounced - In the instant case, the approver - A
PW-6, submitted his application to become an approver on
16.06.2004 well before the judgment which was delivered on
19.04.2005 - In view of the same, the contention regarding
delay on the part of PW-6 is liable to be rejected - Regarding
his change of mind, PW-6 asserted that he had decided to B
disc!Ose the whole incident voluntarily on the advise of the
members of his family - In er.ass-examination, PW-6
explained that since 31.08.2000 (the incident date) till mid of
March, 2004, he had been running amok and during the said
intervening period, he did not meet any people to express his c
mental agony - He asserted that he lost his mental peace
as the murder took place before his own eyes and he was also
directly involved in the killing - He denied, that he deposed
falsely - He also denied that he was provoked that if he turns
to be an approver, he would be given a suitable job - A 0
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
ss. 306 and 307 - The trial Judge, who had the liberty of noting
his appearance and recorded his evidence, believed his E
. version which was rightly accepted by the High Court.
Criminal trial - Hostile witness - Appreciation of - Held:
Merely because a witness deviates from his statement made
in the FIR, his evidence cannot be held to be totally unreliable
- The evidence of hostile witness can be relied upon at least F
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 G
· - However, the Court should be slow to act on the testimony
of such a witness, normally, it should look for corroboration
.with other witnesses.
Criminal Trial - Large number of offenders - Necessity H
414 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A of corroboration - Held: 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 - It is the quality and not the quantity of
evidence to be the rule for conviction even where the number
B of eye witnesses is less than two.
Pena! Code, 1860 - s.34 - Applicability of - Held: The
existence of common intention amongst the participants in
the crime is the essential element for application of s. 34 and
C 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 - In the instant case, from 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
D eye-witnesses - If the case of the prosecution is considered
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 shore
· of the river to eliminate the deceased - In view of these
E materials, the High Court was right in applying s.34 /PC and
basing conviction of six accused persons.
Penal Code, 1860 - ss. 34 and 149 - Distinction between
common intention and common object - Discussed.
F Appeal - Appeal against acquittal - Interference in appeal
against acquittal - Legal position - Discussed.
According to the prosecution, as 'T' had stood
against the students' agitation against kidnapping of
G three students and one labourer by the extremists, the
accused persons developed a grudge againt 'T'; that
they planned to eliminate 'T' and for th.;t purpose
remained stationed on the river shore and when 'T' and
his companions disembarked from a boat, A-12 dragged
H 'T' down and when he fell on the ground, A-5 and A-11
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 415
shot at him causing him severe bullet injuries and which A
ultimately led to his death. There were in all 13 accused
persons- A-7, A-4, A-5, A-2, A-9, A-3, A-10, A-11, A-1, A-6,
A-8, A-12 and A-13. The trial court framed charges against
all the 13 accused persons under Section 302 read with
Section 34/1208 IPC and Section 27 of the Arms Act. B
During the recording of evidence, A-12 filed an application
praying for grant of 'pardon' and to treat him as an
'approver' which was granted by the trial Court. The
"approver" (A-12) was examined as PW-6. The trial C.ourt
acquitted A-1, A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-10 and A- C
13 and convicted A-5 and A-11 for the offences
punishable under Section 302 of the IPC and sentenced
them to suffer rigorous imprisonment for life. A-5 and A-
11 .filed appeal in the High Court. The State also filed
appeal against the order of acquittal of ten accused 0
persons by the trial Court. High Court 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, A-4,
A-9, A-7 and A-1 and convicted them under Sections 302/
34 IPC and sentenced them with imprisonment for life. E
Hence the present appeals.
Dismissing the appeals, the Court
HELD: F
Legal position with regard to interference in Appeal
against Acquittal:
1. In an appeal against acquittal in the absence of
perversity in the judgment and order, interference by this G
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. Law does not prescribe any H
416 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A limitation, restriction or condition on exercise of such
power and the appellate court is free to arrive at its own
conclusion 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
s 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
c 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
0
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
E 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
F the trial Court depending on the materials placed. [Para
8] (439-C-H; 440-A-B]
State of Goa vs. Sanjay Thakran & Anr. (2007) 3 SCC
755 : 2007 (3 ) SCR 507; Chandrappa and Others vs. State
G of Karnataka (2007) 4 SCC 415 : 2007 (2) SCR 630; State
of Uttar Pradesh vs. Jagram and Others, (2009) 17 SCC 405
: 2008 (2) SCR 721; Sidhartha Vashisht aliaf> Manu Sharma
vs. State (NCT of Delhi) (2010) 6 sec 1 : 2010 (4) SCR .103;
Babu vs. State of Kera/a, (2010) 9 SCC 189 : 2010 (9)
H SCR 1039; Ganpat vs. State of Haryana and Others, (2010)
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 417
12 SCC 59 : 2010 (12) SCR 400; $uni/ Kumar A
- Sambhudaya/ Gupta (Dr.) and Others vs. State of
Maharashtra, (2010) 13 SCC 657 : 2010 (15) SCR 452;
State of Uttar Pradesh vs. Naresh and Others, (2011) 4 SCC
324: 2011 (4) SCR 1176; State of Madhya Pradesh vs.
Ramesh and Another, (2011) 4 SCC 786.: 2011 (5 ) SCR 1 B
- relied on.
Evidentiary value of Approver/Accomplice:
2.1. Though a conviction is not illegal merely
beca1.1se it proceeds on the uncorroborated testimony of C
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, that the D
evidence of an accomplice is regarded ab initio as open
to grave suspicion" [Para 11) [440-E-F]
2.2. If the suspicion which attaches to the evidence
of an accomplice be not removed, that evidence should E
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
F
evidence alone. [Para 12) [440-G)
2.3. 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
in such manner as to give rise to a conclusion of guilt G
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. [Para 24] [448-G-H] H
418 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Bhiva Doulu Patil v. State of Maharahshtra, AIR 1963 SC
599: (1963) 3 SCR 830; Mohd. Husain Umar Kochra etc. v.
K. S. Dalipsinghji and Another etc., (1969) 3 SCC 429 : 1969
(3) SCR 130; Sarwan Singh S/o Rattan Singh vs. State of
Punjab AIR 1957 SC 637 : 1957 SCR 953; Ravinder Singh
B v. State of Haryana; (1975) 3 SCC 742: 1975 (3) SCR 453;
Abdul Sattar v. Union Territory, Chandigarh, 1985 (Supp)
SCC 599; Suresh Chandra Bahri v. State of Bihar (1995
Supp (1) SCC 80): 1994 (1) Suppl. SCR 483; Ramprasad
v. State of Maharashtra, : AIR 1999 SC 1969 : (1999 Cri LJ
c 2889); Narayan Chetanram Chaudhary v. State of
Maharashtra, : (2000) 8 SCC 457 : 2000 (3) Suppl. SCR
104; K. Hashim v State of Tamil Nadu, (2005) 1 SCC 237 :
2005 Cri LJ 143 : 2004 (6) Suppl. SCR 1; Sitaram Sao @
Mungeri v State of Jharkhand, (2007) 12 SCC 630: 2007 (11)
SCR 997; Sheshanna Bhumanna Yadav vs. State of
0
Maharashtra (1970) 2 SCC 122 : 1971 (1) SCR 617; Dagdu
and Ors. vs. State of Maharashtra, (1977) 3 SCC 68 : 1977 (
3 ) SCR 636; Rampa/ Pithwa Rahidas and Others vs. State
of Maharashtra, 1994 Supp (2) SCC 73: 1994 (2) SCR 179
- relied on.
E
Approver's evidence {PW-6)
3: 1. The principle of tendering pardon to an
accomplice is to unravel the truth in a grave offence so
F that guilt of the other accused persons concerned in
commission of crime could be brought home. The object
of Section 306 of CrPC 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
G the person granted pardon, the offence may be 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
H section applies, at any stage of the investigation or
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 419
inquiry or trial of the offence on condition of his making A
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 Clas.s is also empowered to tender pardon to
an accomplice at any stage of inquiry or trial but not at B
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 c
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 compiy with the condition of making a full and true
disclosure of the whole of ·the circumstances within his 0
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
E
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. [Para 28] [451-8-H; 452-A]
3.2. Section 306(4) makes it clear that the person F
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 G
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.!' .. H
.
'
.
420 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Section 307 of the Code denotes that pardon can be
tendered at any time after commitment of a 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
s contention regarding delay on the part of PW-6 is liable
to be rejected. [Para 29) [452-B-D]
3.3. 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
C 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 tfle
Code, the Courts below are right in entertaining the
D evidence of PW-6 as approver. [Para 30) [452-E-F]
3.4. In his examination-in-chief, the approver had
clearly stated that he was one of the accused in the case
and during investigation he was arrested by the police.
E 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 'T' and
also asserted that he was also connected with and
F 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, 'T' and
other party leaders attended the said meeting. In the year
2000, there was a student agitation at Ratia Ferry Ghat
G against kidnapping of three students and one labourer
by the extremists. On this issue, the students had blocked
the road. The deceased, 'T', 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
H
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 421
give 'T' a good lesson. On 30.08.2000, at about 7/8 p.m., A
a meeting was convened in the house of the accused A-
5. All the accused persons including PW-6 were present
in the said meeting wherein it was decided to eliminate
'T' as he stood against the students' movement. To
materialize the plan chalked out in the meeting held on B
30.08.2000, 13 persons including PW-6 had spread over
in different groups in different places to eliminate 'T'. All
the 13 accused persons reached Ferry Ghat around 6.15
p.m. After reaching there, they found the boat carrying 'T',
PW-10 and 9/10 other persons in the middle of the river. c
As soon as 'T' and others got down from the boat, one
of the accused .shouted to attack him. While 'T' 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 D
point of time, A-5 and A-11 fired two· rounds of bullet from
their pistols on 'T'. 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. [Para 31] E
[452-H; 453-A-H; 454-A-E]
3.5. Regarding his change of mind, PW-6 explained
that he became perplexed by the death of 'T'. He further
explained· that out of repentance, he once made an . F
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 'T' before the Court. He also
asserted that he had decided to disclose the whole GI
incident voluntarily on the advise of the members of his
family. He identified all the accused persons in the Court
by name and face. [Para 32] [454-G-H; 455-A]
3.6. In cross-examination, PW-6 deposed that the H
422 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
s 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
c murder of 'T' 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. [Para 33] [455-8-D]
D 3.7. 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
E appearance and recorded his evidence, believed his
version which was rightly accepted by the High Court. On
perusal of his entire evidence, it is clear that the
conditions stated in Sections 306 and 307 of the Code
were fully complied with and his statement is acceptable.
F The decision arrived at by the courts below is concurred
with. [Para 34] [455-E-F]
Corroborative evidence with regard to the statement of
PW-6:
G 4. A-5 was identified by PW-1, PW-4, PW-7 and PW-
8. A-7 was identified by PW-1 and PW-7. A-4 was identified
by PW-1 and PW-4. A-1 was identified by PW-4 and PW-
8. A-11 was identified by PW-1, PW-4, PW-7 and PW-8.
Though A-9 was identified by PW-1, PW-4, PW-7 and PW-
H 8, inasmuch as his name has been deleted from the array
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 423
of the appellants vide this Court's order dated A
16.09.2009, there is no need to consider his case in these
appeals. [Paras 36, 37) [455-G; 456-D-G]
Eye-witnesses in the boat
5.1. PW-1 identified A-7, A-4, A-5, A-11, A-2, A-10, A-3 B
and A-9. In his evidence, he deposed that 'T', the
deceased, was known to him. PW-1, in his evidence,
narrated the entire events commencing from conspiracy
ending with gunshot on the deceased - 'T'. Though it
was pointed out that he had not stated all the details in C
the complaint, on going through the same, this Court is
satisfied that all relevant details have been stated in the
complaint and the omission to mention is only negligible.
Likewise, it was contended by the appellants that though
there were some police personnel in the police mobile D
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 Hospital first
and later on, in association with his party supporters, he
lodged a complaint. In such a situation, it is but natural E
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 the police. There is no infirmity in the conduct of PW-
1 in not conveying anything to the police personnel in the F
mobile van and even his interaction with his party
colleagues. The other eye-witness is PW-3, who was in
the boat. It was he, who identified A-12, A-13 and A-6 as
the members of attacking group. He also admitted that the
deceased 'T' was known to him. Apart from' three G
persons mentioned above, PW-3 also stated that about
10/12 persons attacked 'T'. There is no contradiction with
regard to the identification of the said three assailants.
Apart from eye-witnesses PW-1 and PW-3, another eye-
witness PW-11 was also present in· the boat. His
H
424 SUPREME COURT REPORTS [2011] 14 (ADDL.1 S.C.R.
A evidence shows that he was also in the boat, however,
he only mentioned that accused A-8 was found near the
venue of the meeting and he narrated about the enquiry
made by him whether 'T' would attend the meeting. Even,
according to him, the said A-8 had disappeared from the
B place of meeting. (Para 39) [457-A-B; 458-B-E-G-H; 459-
E-F; 460-A-B]
5.2. The other three persons in the boat were PW-2,
PW-10, and PW-12. No doubt, all the three witnesses
turned hostile since they refused to identify the assailants
C 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 'T'.
D 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
E 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 reljed on for corroboration. [Para 39) (460-C-
F]
F
Eye-witnesses in the passenger shed
6.1. The four eye-witnesses, namely, PW-4, PW-7, PW-
8 and PW-9 were waiting in the passenger shed on the
opposite bank of the river and when the assailants had
G attacked the victim all of a sudden, they rushed to the
spot. In his evidence, PW-4 admitted that 'T' was known
to him and he was his maternal uncle. PW-7, in his
examination-in-chief, stated that 'T' was murdered on
31.08.2000 by s·ome miscreants belonging to UBLF
H extremists group. According to him at the time of
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 425
- occurrence, he was sitting in the passenger shed which A
is about 100 cubics away from the place of occurrence.
He also mentioned that besides him PW-8, PW-4, 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 8
05:30 p.m. He also stated in the examination7ili-chief
about the meeting at Santinagar and explained that the
deceased 'T' went to Santinagar to attend that peace
meeting organized by DYF.I. He further explained that he
along with others went to Santinagar to escort 'T'. Like, c
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 A-5, A-11, A-9 and A-7. At about 06:30 p.m.,
according to him, he noticed that 'T' accompanied by 0
about 15 persons crossing the river in a b<?at. The
accused persons, namely, A-9, A-5, A-7 and A-11 were
identified in the Court by name and face by PW-7. PW-8
was one of the persons vyaiting in the passenger shed
at the relevant time. He admitted that 'T' was his eldest Et
brother. 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.,
PW-7, PW-4, PW-9 and he himself were sittiRg in the
passenger shed which is about 100 cubics away from
Santinagar Ferry Ghat. PW-8 also deposed that they were F
waiting in the passenger shed to escort his brother who
was supposed to return from Santinagar after attending
a peace meeting. 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 G
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 A-5, A-11, A-9 and A-1. He saw A-1 coming H
426 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A hurriedly from the other side of the river. He deposed, as
soon as 'T' 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 ruslied to the place of
occurrence, and then the miscreants ran away towards
s south-east direction. On arriving at the place of
occurrence, he found 'T' 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,
c he took his brottier 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
A-1, A-9, A-11 in the Court by name and face. He also
mentioned that PW-10, PW-12, PW-3, PW-11 and three
0
others were in the boat along with his brother while
crossing the river. Another witness from the passenger
shed was ,PW-9. Like other witnesses, namely, PWs 4, 7
and 8, he also explained the said incident. Though PW-9
E turned hostile, he admitted that he along with PW-8, PW-
4 and PW-7 were sitting in the passenger shed with a
view tg escort hJs brother 'T'. [Para 40] [460-G-H; 461-A;
462-~0· 463.A-H· 464-A-E] . ·
' \• '
6.2. The analysis of statement of various persons,
F 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
G till the death of the deceased 'T'. By these statements, the
prosecution has strengthened its case through PW-6
approver and there is no reason to disbelieve his version.
[Para 41] [464-H; 465-A·B]
H
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 427
Reliance on the hostile witness A.
7.1. PW-2, PW-9, PW-10 and 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
8
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 C
the truth. His evidence has to be read and considered as
a whole with a view to find out whether any weight
shou.ld 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 D
because a witness deviates from his statement made in
. the FIR, his evidence sannot be held to be totally
unreliable. The evidence of hostile witness can be relied
upon at least up to the extent, he supported the c~e of
prosecution. The evidence of a person does not become E
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. (Para 42) [465-C-G]
7.2. In the instant case, eye witnesses including the
F
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,
A-5 and A-11. PWs 1, 4, 7 and 8 identified accused A-9.
PWs 1 & 7 identified accused A-7. PWs 1 & 4 identified G
A-4. PWs 4 & 8 identified 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 H
428 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R.
A identified by the same assailants. However, it is clear that .
two or more than 2 eye-witnesses 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
B is necessary for the Court to seek corroboration, at least,
from two or more witnesses as a measure of ca·ution.
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. [Para 43] [465-H; 466-A-
C D]
7.3. 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
D witnesses but quality of their evidence. As rightly
observed by the High Court, there are only six accused
persons namely, A-5, A-11, A-9, A-4, A-7 and A-1 identified
· by two or more eye witnesses while A-5 and A-11 were
recognized by PWs 1, 4, 7 and 8 corroborated by PW-6
E (approver). A-7 was recognized by PWs-1 & 7, A-4 by PWs
1 & 4 and A-1 by PWs 4 & 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.
F [Para 44] [466-E-H]
Applicability of Section 34 IPC
8.1. The reading of Section 34 IPC makes it clear that
the burden lies on prosecution to prove that the actual
G participation of more than one person for commission of
criniinal 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
H with common intention and such conviction in tt"lose
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 429
cases are not sustainable. A clear distinction made out A
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 B
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.
[Para 45] [467-E-G] c
8.2. 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 D
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 E
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 F
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 A-5 and A-11, however, there ·
is no plausible reason by the trial Court as to why the G
other part of the statement of the approver could not be
believed. 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, common intention has to be inferred from proved H
430 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
: A 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. The trial Court failed to
explain or adduce sufficient reasons as to why the other
B 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)
c specifically naming six accused persons including the
two convicted appellants. [Para 46] [467-H; 468-A-G]
8.3 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
D acts of several persons charged with the commission of
an offence jointly must be the same or identically similar.
From the evidence of eye-witnesses as well as the
approver (PW-6) it is clear that one A-8 was deployed at
the place of meeting at Santinagar for the purpose ·of
E 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 'T'
F and other eye-witnesses was about to reach Bagan Bazar
shore, accused 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. From the materials
G 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 the case of the prosecution is
considered in the light of the disclosure made by the
H approver (PW-6), coupled with the statement of eye-
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 431
witnesses, it is clear that the 13 assailants had planned A
and remained present on the shore of the river to
eliminate 'T'. 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 A-5, A-11, A-9, A-7, A-4 and A-1. [Para B
47] [468-H; 469-A-F]
Medical evidence:
9.1. The Doctor who conducted the post mortem on
the dead body was examined as PW-14. His report shows C
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 ems. X .5 cm x bone deep occipital
region, and three, lacerated injury, 4 cm x 1 cm x bone D
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. There is no inconsistency E
between the contents of the post mortem examination
report (Ex.7) and the medical evidence of 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 F
corroborated by the medical evidence of PW-14 and
(Ex.7). [Para 48] [469-G-H; 470-A-C]
9.2. 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 G
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. [Para 49] [470-F-G] H
•• 432 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Conclusion
10. 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
B
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. The
c ultimate decision arrived at by the High Court is
confirmed. [Paras SO, 51) [470-H; 471-A-D]
Case Law Reference:
2007 (3) SCR 507 relied on Para 6
D
2007 (2) SCR 630 relied on Para 7
2008 (2) SCR 721 relied on Para 7
2010 (4) SCR 103 relied on Para 7
E
2010 (9) SCR 1039 relied on Para 7
2010 (12) SCR·400 relied on Para 7
2010 (15) SCR452 relied on Para 7
F 2011 (4) SCR 1176 relied on Para 7
2011 (5) SCR 1 relied on Para 7
(1963) 3 SCR 830 relied on Para 13
G 1969 (3) SCR 130 relied on Para 14
1957 SCR 953 relied on Para 15
1975 (3) SCR 453 relied on Para 16
H
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 433
1985 (Supp) sec 599 relied on Para 17 A
1994 (1) Suppl. SCR 483 relied on Para 18
AIR 1999 SC 1969 relied on Para 18
2000 (3) Suppl: SCR 104 relied on Para 18 B
2004 (6) Suppl. SCR 1 relied on Para 20
2007 (11) -SCR 997 relied on para 20
1971 (1) SCR 617 relied on Para 21"
c
1977 (3) SCR 636 relied on Para 22
1994 (2) SCR 179 relied on Para 23
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1994 of 2009. D
From the Judgment and Order dated 29.01.2008 of the
High Court of Gauhati, Agratala Bench in.Criminal Appeal No.
90 of 2005.
WITH E
Criminal Appeal No. 1719 of 2011.
Sidharth Luthra, Satyanarayan and Siddhartha Chowdhury
for the Appellants.
F
Anuj Prakash and Gopal Singh for the Respondent.
The Judgment of the Court was delivered by
P. SATHASIVAM, J.
G
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 H
434 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Tripura-respondent herein, reversed the order of acquittal of the
appellants herein dated 19.04.2005 passed by the Additional
Sessions Judge, West Tripura, Khowai in Case S.T. No.
54(WT /K)/2002 and convicted and sentenced them to
imprisonment for life undeJ Section 302 read with Section 34
B 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) Crimlnal Appeal No.1719 of 2011
C @ SLP (Crl.} 6728/11 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
0 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:
E
(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
F 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
G 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) sh.ct at him causing severe bullet injuries. After finishing their
job, the assailants fled away. The victim was immediately taken
H to the local hospital but as he was sinking, he was referred to
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 435
[P. SATHASIVAM, J.]
G.8. Hospital at Agartala for specialized treatment. The victim A
died on the way to hospital.
(b) On the very same day, at about 08:35 p.m, one Babu!
Dey (PW-1) lodged a First Information Report (in short "the
FIR") being FIR No. 85/2000 with the Police Station, Kalyanpur, 8
West Tripura, Tripura. On the basis of the r!R, a case was
registered under Sections 148, 149, 326 and 307 of the !PC
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 C
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 D
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- E
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
F
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/
1208 IPC and Section 27 of the Arms Act. G
(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 . H
436 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B Tapan Das (A-5) and Gautam Das (A-11) for the offences
punishable under Section 3-02 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.
c (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
D 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),
E 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.
F (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
G (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.
H
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 437
[P. SATHASIVAM, J.]
. Legal position _with regard to interference in Appeal A
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. B
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:- · c
"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 o
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. E
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
F
circumstances, to reappreciate the evidence to arrive at
a just decision 011 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 G
(2007) 4 sec 415, while considering the similar issue, namely,
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:- H
438 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A "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
B
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition o"n exercise of such power
and an appellate court on the evidence before it may reach
c 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
D 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
• 1anguage" to emphasise the reluctance of an appellate
court to interfere with acquittal than to curtail tha power of
the court to review the evidence and to come to its own
E
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
F 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
G 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."
H
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 439
[P. SATHASIVAM, J.]
The same principles have 13een reiterated in several recent A
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 Kera/a, (2010) 9 SCC 189, Ganpat vs. State of
Haryana and Others, (2010) 12 SCC 59, Sun ii Kumar 8
Sambhudaya/ 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 sec. 786.
8. It is clear that in an appeal against acquittal in the C
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 cou1 of fact, is fully competent to re-
appreciate, reconsider and review the evidence and take its D
own decision. In other words, law does not prescribe any
limitation, restriction or condition on exe'rcise of such power and
· the appellate court is free to arrive at its own conclusion keeping
in mind that acquittal provides for presumption in favour of the
accused. The presumption of innoc~nce is available to the·. E
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 F
appellate court to review the evidence upon which the order of
acquit~al 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 qy the State, it is the duty G
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 H
440 SUPREME COURT REPORTS [2011] 14 (ADDL.) $.C.R.
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
8 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 confirmatio.n of sentence on the
two convicted appellants.
c
Evidentiary value of Approver/Accomplice:
10. Before considering the impugned judgment on merits,
inasmuch as the High Court heavily relied on the evidence of
0 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
E 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, that
the evidence of an accomplice is regarded ab initio as open
F 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
G 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
H application of this term, it is desirable to mention Section 133
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 441
[P. SATHASIVAM, J.]
of the Indian Evidence Act, 1872 along with Illustration (b) to ·A
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 8
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." c
Dealing with the scope and ambit of the above-noted two
provisions, this Court, in Bhiva Ooulu 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
0
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 E
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 F
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 G
etc., (1969) 3 sec 429 and it was held : -
" .... The combined effect of Sections 133 and 114,
Ulustration (b) is that though a conviction based upon
accomplice evidence is legal, the Court will not accept H
442 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A 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
s corroboration is in material particulars. The corroboration
must be frpm an independent source. One accomplice
cannot corroborate-another."
15. While considering the validity of approver's testimony
C and tests of credibility, this Court, in Sarwan Singh Sia 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
D 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
E 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
F evidence merely because it is corroboraled 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
G
considering the question of corroboration and its adequacy
or otherwise, tl).e 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,
H
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 443
[P. SATHASIVAM, J.]
and no question as to whether his evidence is corroborated A
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 B
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 C
reliable witness and the test of reliability has to be satisfied
by an approver all the more before the question of
corroboration of his evidence is considered by criminal
··courts"
D
16. Further, in Ravinder Singh v, State ofHaryana, (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 : -
E
"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 F
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 consid.eration
all the factors, circumstances and situation governing a G
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 st;:itement has to be
corroborated in material particulars bridging closely the H
444 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B 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
C 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 found to be not reliable, the
worth of his evidence is lost and such evidence, even by seeking
D 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
E Maharashtra,: AIR 1999 SC 1969 : (1999 Cri LJ 2889) and
Narayan Chetanram Chaudhary v. State of Maharashtra, :
(2000) 8 sec 457.
19. In Narayan Chetanram Chaudhary (supra), it was
further held that for corroborative evidence, the court must look
F 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
G 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
H before this Court in K. Hashim v State of Tamil Nadu, (2005)
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 445
[P. SATHASIVAM, J.]
--1 SCC 237 : 2005 Cri LJ 143 and Sitaram Sao@ Mungeri v A
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 8
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 C
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 D
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 E
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 F
corroboration must be clearly present in the mind of the
Judge"
21. In Sheshanna Bhumanna Yadav vs. State of
Maharashtra. (1970) 2 SCC 122, the test of reliability ·of G
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, H
446 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A 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
B 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
c 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
D
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
E 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.
F
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
G 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 .necessa11 to find out
whether the approver or accomplice was a reliable witness.
This Court in Lachi Ram case said that the first test of
H reliability of approver and accomplice evidence was for the
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 447
[P. SATHASIVAM, J.]
court to be satisfied that there was nothing inherently A
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." B
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: C
"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 D
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 E
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
F
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 G
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 m••implicate ten people in an offence and the story
may b0° 1:rue in all its details as to eight of them but untrue
H
448 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
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 implicates
B 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;
c 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
D 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."
E 23. In Rampa/ 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
F 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
G so far as an accused is concerned, must implicate him 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
H may even be in the form of circumstantial evidence.
MRINAL DAS & ORS. v. THE STATE OF TRiPURA 449
[P. SATHASIVAM, J.]
25. Keeping the legal principles enunciated by this Court A
· 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.
8
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 C
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 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 D
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 E
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 F
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 G
commission thereof.
(2) xxxxx
(3) Every Magistrate who tenders a pardon under sub-
section (1) shall record- H
450 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. .
A (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
B 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
c 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.
D
(5) Where a person has accepted a tender of pardon made
under sub-section (1) and has, been examined under Sl!b-
section (4), the Magistrate taking cognizance of the
offence shall, without making any further inquiry in the case.
E (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;
F
(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
G 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,
H with a view, to obtaining at the trial the evidence of any
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 451
[P. SATHASIVAM, J.]
person supposed to have been directly or indirectly A
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
8
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 C
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 D
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 · E
' 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 F
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 G
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
H
452 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B 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,
C 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 case but before the judgment is pronounced.
D 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.
E 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
F 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
G 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
H he was arrested by the police. On completion of investigation,
' MRINAL DAS & ORS. v. THE STATE OF TRIPURA 453
[P. SATHASIVAM, J.]
the investigating agency submitted charge-sheet against him A
- alqng 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 B
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 c
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
0
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 meet ing on 30.08.2000, they saw posters E
1
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 F
. .diflerent groups in different places to eliminate Tapan
Chakraborty. Uttam Shrn (/.\-8) was deputed on the other side
of the river to let them inJor,med when Tapan Chakraborty would
be proceeding towards Bagan· Bazar on conclusion of meeting.
Radha Kant Das (A-13), Ashim Bhattacharjee (A-2), Bikash G'
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
H
454 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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)
ihat the meeting at 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
s Das (A-1) started for Ferry Ghat. On seeing them, another
group including PW-6 waiting at Bagan Bazar also followed
them. All the afotesaid 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
c 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
D 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
E assailants fled towards south-east direction. PW-6 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 f:louses. On th~ following day, PW-6 came to know
F from local news broadcasted by the All India Radio that Tapan
Chakraborty died following the gun shots.
32. Regarding his c;hange of mind, PW-6 explained that
he became perplexed by the death of Tapan Chakraborty. He
G 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
H had decided to disclose the whole incident voluntarily on the
MRINAL OAS & ORS, v. THE STATE OF TRIPURA 455
[P. SATHASIVAM, J.]
advise of the members of his family. He identified all the A
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, 8
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 C
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, D
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 E
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 F
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:
G
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), Tapari Das (A-5), Bikash Das (A-6), Somesh Das (A-
7), Uttam Shil (A-8), Pradip Das (A-9), Subal Deb (A-10), H
458 SUPREME COURT REPORTS [2011] 14 (ADDL.) S:C.R.
A 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
8
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
C 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
D 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 the police. We are satisfied that there
.E 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
F 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
G 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
H 5:45 p.m. He along with Tapan Chakraborty and others reached
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 459
[P. SATHASIVAM, J.]
Santinagar through Ferry Ghat. They crossed the river by boat A
and got down on the other side of the river and in that process,
- according to liim, 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 the
place of occurrence and some people who were waiting in the B
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, c
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 1.0. 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 D
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.
. ' E
(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, i0n the fateful day, that is, on
31.08.2000 around 3.00 p.m., he met Tapan Chakraborty at
Bagan Bazar who requested him to go to Santinagar well F
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 mer.itioned that Uttam Shil (A-8)
enquired from him whether Tapan iChakraborty would attend the G
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 H
460 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B found near the venue of the meeting and he narrated about the
enquiry made by him whether Tapan Chakraborty would attend
the meeting. Even .. 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
C (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
D 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
E 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
F corroboration.
Eye-witnesses in the passenger shed
40. Now, let us discuss the eye-witnesses who were
present in the pass.enger shed.
G
(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
H attaQked the victim all of a sudden, they rushed to the spot. In
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 461
[P. SATHASIVAM, J.]
his evidence, Nehar Ranjan Deb (PW-4) admitted that Tapan A
. 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 B
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 Sidhu Urang (PW-7) c
also 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
0
· Bazar from the side of Ferry Ghat. After 5/7 minutes, he had
seen about 10 youths proceeding towards Ferry Ghat from the
d!rection 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 · E
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 F
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. They lifted
him and brought him on the main road and with the help of a G
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 H
.\
462 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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 Sidhu Urang, examined as PW-7. In his examination-in-
s 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
C 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-
D 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
E 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
F 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,
G he alongwith his companions rushed to Ferry Ghat and found
Tapan Chakraborty in injured condition. They fCarried him upto
main road and then they took him in a polic; mobile van. He
asserted that the group ol persons who were found running
away from the Ferry Ghat was the same whom he saw earlier
H proceeding towards Ferry Ghat from Bagan Bazar. He informed
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 463
[P. SATHASIVAM, J.]
the Court that on 31.08.2000, at around 10:30 p.m. one police A
_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 B
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.. ·.r·
Das (A-7) and Gautam Das (A-11) were identified in the Court c
by name and face by PW-7. In cross-examination, it is true that
he informed the Court that he does notknow 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 D
relevant time. He admitted that Tapan Chakraborty was his
eldest brother. According to him, prior to his death, he held
many responsible posts ih 1CPI (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 E
by the miscreants at Santinagar Ferry Ghat. According to him,
on that day, around 05:15 p.m., Sidhu Urang (PW-7), Nehar
Ranjan Deb (PW-4), Satyendra "i"anti (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 F
they were waiting in the pas,senger 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 G
used to accompany and escort him whenever he go outsic;1e 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 ), H
464 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A Pradip Das (A-9) and Ani1 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
s 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
C 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
0
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), NHai Das (PW-3), Benu Ranjan Dhupi
(PW-11), Sujit Das, Subrata Das, Rajesh Das were in the boat
along with his brother while crossing the river
E
(d) Another witness from the passenger shed was
Satyendra Tanti (PW-9). Like other witnesses, namely, PWs 4,
7 and 8, he also explafned the said incident. He admitted that
Tapan Chakraborty was the Vice Chairman, Kalyanpur
F 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.
G Though PW-9 turned hostile as stated earlier, he admitted that
he along with Pranab Chakraborty (PW-8;1 Nehar Ranjan Deb
(PW-4) and Sidhu Urang (PW-7) were s;tting in the passenger
shed with a view to escort his brother Tapan Chakraborty.
41. The analysis of statement of various persons,
H
MRINAL DAS & ORS. v. THE STATE OF ,TRIPURA 465
[P. SATHASIVAM, J.]
particularly, eye-witnesses clearly strengthen the case of PW- A
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
deceased Tapan Chakraborty. We are satisfied that by these B
statements, the prosecution has strengthened its cease 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 C
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 regi:lrding
commission of offence is admissible. The fact that the witness
was declared hostile at the instance of the Public Prosecutor D
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 E
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 F
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 G
examined more cautiously to find out as to what extent he has
supported the case of the prosecution. ·
43. lri 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 H
466 SUPREME COURT REPORTS (2011] 14 (ADOL.) S.C.R.
A 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
B 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 could
c 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
D · 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
E other words, in the matter of appreciation of evidence of
witnesses, it is not the number of wi~nesses 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-
F 7) and Anil Das (A-1) identified by two or more eye witnesses
while Ta pan 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
G & 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
H expressed by the High Court.
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 467
[P. SATHASIVAM, J.]
45. Now we have to find out whether the· High Court is A
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 B
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 c
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 D
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 Section 34 CPC makes it clear that the burden
lies on prosecution to prove that the actual participation of more E
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 F
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 G
proof of prior meeting of minds or pre-concept. Though there
is substantial difference between the two sections, namely,
Sections 34 and 1_49 IPC, to some extent they also overlap and
· it is a question to be determined on the facts of each case.
46. There is no bar in convicting the accused under H
468 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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
B 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
c 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
0
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 not be believed. 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
E 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
F 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
G two or more eye-witnesses corroborated the testimony of
approver (PW-6) specifically naming six accused persons
including the two convicted appellants.
4 7. The existence of common intention amongst the
H participants in the crime is the essential element for application
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 469
[P. SATHASIVAM, J.]
of Section 34 and it is not necessary tht:it the acts of several A
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 B
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 c
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 B'azar. Thereafter, the occurrence took place. The
materials placed by the prosecution, particularly, from the eye- D
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 E
assailants had planned and remained present on the shore of
the rivl:lr 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), Ga1:1tam 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 G
dead body was examined as PW~ 14 and his report has been
marked a$ 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 ems. X .5 cm x bone deep
H
470 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 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 o_n
his back. According to him, injury Nos. 2 and 3 might be
received by the deceased by the same bullet if the bullet had
s split. We also verified the post mortem examination report
(Ex.7) and the medical evidence of PW-14 and find no
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
c 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. S.idharth Luthra, learned senior counsel
appearing for the appellants pointed out certain contradictions
D 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
E 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
F 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
G 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
H 50. As discussed earlier, the statement of approver (PW-
MRINAL DAS & ORS. v. THE STATE OF TRIPURA 471
[P. SATHASIVAM, J.] .
· 6) inspires confidence including the conspiracy part which gets A
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 B
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. c
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.
D
B.B.B Appeals dismissed.
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