SUDIP KR. SEN @ BILTUversusSTATE OF WEST BENGAL & ORS.

                             [2016] 1S.C.R.616



A                       SUDIP KR. SEN @ BILTU
                                     v.

                   STATE OF WEST BENGAL & ORS.
                    (Criminal Appeal No. 17 of2016 etc.)
B                           JANUARY 07, 2016
              [T. S. THAKUR, CJI AND R. BANUMATHI, J.]
           Penal Code, 1860:
           s. 302 nv s. 34 - Murder - Conviction u/s. 302 rw s. 34 - On
    facts, appellants and another co-accused came together, one
c   accused abused the victim and one of them exhorted others - On
    such exhortation, h;•o accused caught hold of the victim and hl>o
    accused fired at the victim resulting in his death - On basis of the
    evidence of PW 6-single witness, trial court convicted and sentenced
    the appellants and co-accused u/s. 302134 - High Court upheld the
D   order - Interference with - Held: Not called for - There is no ground
    to interfere with the concurrent finding recorded by the courts below
    as to the reliability of PW-6 and to record the conviction - Evidence
    of PW-6 to the effect that all the appellants and another co-accused
    were doing illegal business of extorting money from the flat owners
    as also as regards the entire incident - Facts and circumstances
E
    clearly establish that there was prior concert and that the appellants
    acted in furtherance of common intention in committing the murder
    of the victim and thus, were rightly convicted u!s. 302134.
           s. 34 - Common intention - Connotation of - Held: Common
    intention implies pre-arranged plan - Under s.34 a pre-concert in
F
    the sense of a distinct previous plan is not necessary to be proved -
    Essence of liability uls. 34 is conscious mind ofpersons participating
    in the criminal action to bring about a particular result - Question
    whether there was any common intention or not depends upon
    inference to be drawn from the proved facts and circumstances of
G   each case.
          Prithipal Singh & Ors. vs. State of Punjab & Anr. 2012
          (14) SCR 862: (2012) 1 SCC 10 - referred to.
                           Case Law Reference

H         2012 (14) SCR 862         referred to.    Para 12
                                     616
   SUDIP KR. SEN@ BILTU v. STATE OF WEST BENGAL                              617



      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                      A
Nos. 17 of2016 etc.
      From the Judgment and Order dated 24.09.2012 at the High Court
at Calcutta in Cr!. Appeal No. 544 of 2004.
     WITH
     Crl. A. Nos. 19, 21, 23 and 25 of2016                                   B
     Mehul M. Gupta, R. P. Gupta, Rauf Rahim, Sunita Sharma, Sumita
Hazarika, Rukhsana Choudhury, Shashi Kiran, Sukesh Ghosh,
Rameshwar Prasad Goyal for the Appellant.
      Joydeep Mazumdar, Parijat Sinha, Rohit Dutta, Sweety
Chattopadhyay for the Respondents.                                            c
      The Judgment of the Court was delivered by
      R. BANUMATHI, J. 1. Delay condoned. Leave granted.
      2. These appeals arise out of the common judgment dated
24.09.2012 passed by the High Court of Calcutta dismissing Criminal           D
Appeal No.544 of2004 filed by the appellants and thereby affirming the
conviction of the appellants under Section 302 read with Section 34 !PC
and sentence of life imprisonment and a fine of rupees five thousand
imposed on each of them.
       3. Briefly stated case of the prosecution is that on 13.01.2002 at     E
about 08.30 p.m., complainant-PWl-Gora Das was having tea alongwith
some of his friends at the shop ofone Bablu Pal-PW5 at Shakherbazar.
Sandipan Majumdar-PW6 sitting on his motorcycle was also having tea
in front of tea stall of PW-5. At that time, the appellants came in a body
to the place of occurrence. At first, appellant-Sudip Kumar Sen@ Biltu
                                                                              F
(A-3) abused the deceased-Saikat Saha and asked him as to why he did
not meet Jishu da in the court as he was asked to do so at several
occasions. Appellant-Apu Chatterjee@ Soumitra (A-6) said that if the
men of Khoka were not killed then there would be no peace. On such
exhortation, appellants-Tapas Das@ Bhambal (A-2) and Sankar Das
@ Bhai (A-4) caught hold of Saikat Saha-deceased and appellants               G
Goutam Ghosh (A-1) and Sk. Kochi@ Sk. Mobarak (A-5) fired at him
and Saikat Saha sustained two gunshot injuries in the right chest. Gora
 Das-PW! and Sandipan Majumdar-PW6 had immediately taken injured
 Saikat Saha to Calcutta Medical Research Institute. Dr. Debasish Pal-
 PW9 examined Saikat Saha and declared that he was brought dead and
 issued Injury Report (Ex.4) and Death Certificate (Ex-P4/1 ).                H
618            SUPREME COURT REPORTS                           (2016] I S.C.R.


A            4. Gora Das-PW! lodged the complaint on 14.01.2002 at 1.45
      a.m. before Thakurpukur Police Station, on the basis of which FIR was
      registered in Case No.12 of 2002 under Section 302 read with Section
      34 !PC and Sections 25 and 27 of the Arms Act against unknown persons.
      A. K. Ghosh- Investigating Officer-PW! 3 had taken up the investigation
      and visited the spot and examined the available witnesses including PW6-
B
      Sandipan Majumdar who informed the police that he had witnessed the
      event and PW-6 also named the accused. On his statement, the appellants
      and ac:cused Sk. Kochi@ Sk. Mobarak and one Jishu Jain were arrested.
      After investigation, chargesheet was filed against the appellants and
      other accused under Section 302 read with Section 34 IPC, Section 120-
c     B !PC and Sections 25 and 27 of the Arms Act.
             5. To prove the charges against the accused, prosecution
      examined thirteen witnesses and adduced documentary evidence. Upon
      appreciation of evidence and observing that PW-6 is a trustworthy witness,
      Additional SessionsJudge,Alipore convicted the appellants and Sk. Kochi
D     under Section 302 read with Section 34 !PC and sentenced each of
      them to undergo Iife imprisonment and also imposed a fine of rupees
      five thousand on each of them. The trial court acquitted the co-accused
      Jishu Jain of all the charges levelled against him. Aggrieved by the
      verdict of conviction, the appellants tiled appeal before the High Court.
      The High Court vide impugned judgment dated 24.09.2012 dismissed
 E    the appeal thereby affirmed the conviction and sentence imposed on the
      appellants as aforesaid. Being aggrieved, the appellants-Goutam Ghosh
      (A-1 ), Tapas Das @ Bhambal (A-2), Sudip Kr. Sen @ Biltu (A-3),
      Sankar Das @ Bhai (A4) and Apu Chatterjee @ Soumitra (A-6) are
      before us. Accused Sk. Kochi@ Sk. Mobarak (A-5) has not challenged
 F    the impugned judgment.
             6. Learned counsel for the appellants contended that both the
      courts below failed to take into account the serious flaws, inconsistencies
      and contradictions in the statement of prosecution witnesses which
      according to the appellants, practically demolished the version of the
 G    prosecution as propounded by the testimony of PW-6. It was submitted
      that in the cross-examination, PW-I categorically stated that at the time
      of occurrence he and his friends ran to the spot which is at a distance of
      few yards from the tea stall and therefore PW-6 could not have witnessed
      the occurrence sitting on the motor cycle and taking tea along with PW-
      1 and vc:rsion of PW-6 is totally contradictory to the statement of PW-
 H
   SUDIP KR. SEN@ BILTU v. STATE OF WEST BENGAL                                 619
                 [R. BANUMATHI, J.]

1. Raising doubts as to the credibility of testimony of PW-6, it was            A
submitted that PW-6 is said to have accompanied PW- I in taking the
deceased to the hospital, he did not reveal the identity of the assailants to
PW-I and not even at the time of lodging the FIR which was registered
against unknown persons.
       7. Per contra, learned counsel for the respondent-State contended        B
that the culpability of the appellants have been proved to the hilt by the
evidence of PW-6 who was a natural eye-witness to the occurrence
and that he was standing outside the tea stall and was in a vantage
position to see the assailants and witness the occurrence. It was further
submitted that the courts below recorded concurrent findings to the
credibility of PW-6 and there is no ground warranting interference with
                                                                                c
the conviction of the appellants.
     8. We have considered the rival contentions and perused the
impugned judgment and material on record.
       9. Sandipan Majumdar-PW6 has stated that on the date of the              D
incident i.e. on 13.01.2002 at about 8.30 p.m., while he was taking tea at
the tea stall at Shakerbazar, Saikat Saha, PW I -Gora Das and others
were also taking tea there. PW-6 had categorically stated that the
assailants armed with firearms came together and Sudip Kumar Sen
(A-3) started abusing Saikat Saha and questioned him as to why he did
not meet Jishu da in the court inspite of several reminders. Apu Chatterjee      E
(A-6) shouted that there will be no peace ifthe men of Khoka were not
killed. On such exhortation, Tapas Das (A-2), Sankar Das (A-4) caught
hold of deceased and Gautam Ghosh (A-I) and Sk. Kochi {A-5) fired at
Saikat Saha. PW-6 stated that the appellants were doing illegal business
of collecting money from the flat owners in the locality and an altercation      F
took place over the said matter and PW-6 further stated thatthe appellants
also used to come to the deceased and thus he knew all of them. PW-
 6 was examined by the police on the very next day i.e. on 14.01.2002
and in his statement before the police, PW-6 named the appellants-
accused except Jishu Jain as the assailants. PW-6 was a natural eye-
witness to the incident. Throughout the searching cross-examination,            G
PW-6 remained consistent and his evidence remained unshaken. That
PW-6 is a natural witness is also borne out from the fact that PW-6
 accompanied PW I-Gora Das in immediately taking the deceased to the
 hospital and the same is evident from the Injury Report (Ex.4) and Death
Certificate (Ex-4/1) issued by PW9-Dr. Debasish Pal which clearly
                                                                                H
620             SUPREME COURT REPORTS                           [2016) I S.C.R.


A     mention that the deceased was brought to the hospital by PW-I and
      PW-6.
              10. Complainant-Gora Das (PW-I), though not named the
      assailants, in his evidence stated that while he was taking tea in the tea
      stall ofBablu Pal (PW-5) situated at Shakherbazar Behala at about 8.30
B     p.m., he heard sound of the firearm and when he ran to the spot, he
      found the deceased-Saikat Saha lying with bleeding injuries and that he
      along with PW-6 took the injured to Calcutta Medical Research Institute.
      Evidence of Pinku Biswas-PW2 is also to the same effect that he heard
      the sound of two shots and there was chaos in the street and shutters
      were closed down by shopkeepers and after sometime when people
c     came out, they saw Saikat Saha with gunshot injuries. Evidence of Paritosh
      Pal-PW3 and Gora Das-PW! who are the nearby shop owners is also
      to the same effect. Though PW s I to 4 have not named the assai Iants,
      their evidence shows that there was an occurrence in which Saikat Saha
      was shot by the assailants which lends assurance to the evidence of
D     PW-6. Evidence of PW-6 that the deceased sustained two gunshot
      injuries is also supported by the medical evidence i.e. Injury Report (Ex.4)
      and De:ath Certificate (Ex.4/1) issued by Dr. Debasish Pal (PW-9).
             11. It is well-settled that the court may act on a testimony of a
      single witness though uncorroborated, provided that the testimony of
E     single witness is found reliable. Trial court which had the opportunity of
      seeing and hearing PW-6 found him wholly reliable and trustworthy and
      held that evidence of Sandipan Majumdar-PW6 cannot be doubted as
      far as the role attributed to A-1 to A-6 except Jishu Jain is concerned,
      which was affirmed by the High Court. We find no ground to interfere
      with the concurrent finding recorded by the Courts below as to the
 F    reliability of PW-6 and to record the conviction.
             12. Observing that there is no impediment for recording conviction
      based on the testimony of a single witness provided it is reliable in
      Prithipal Singh & Ors. vs. State of Punjab & Anr., (2012) I SCC I 0,
      it was observed as under:-
 G
             "49. This Court has consistently held that as a general rule the
             court can and may act on the testimony of a single witness provided
             he is wholly reliable. There is no legal impediment in convicting a
             person on the sole testimony of a single witness. That is the logic
             of Section 134 of the Evidence Act. But if there are doubts about
 H           the testimony, the court wi II insist on corroboration. In fact, it is
   SUDIP KR. SEN@ BILTU v. STATE OF WEST BENGAL                                    621
                 [R. BANUMATHI, J.]

      not the numberorthe quantity, but the quality that is material. The          A
      time-honoured principle is that evidence has to be weighed and
      not counted. The test is whether the evidence has a ring of truth,
      is cogent, credible and trustworthy or otherwise. The legal system
      has laid emphasis on value, weight and quality of evidence, rather
      than on quantity, multiplicity or plurality ofwitnesses. It is, therefore,
                                                                                   B
      open to a competent court to fully and completely rely on a solitary
      witness and record conviction. Conversely, it may acquit the
      accused in spite of testimony of several witnesses if it is not
      satisfied about the quality of evidence." [See Vadivelu Thevar v.
      State ofMadras, AIR 1957 SC 614, Sunil Kumar v. State (Govt.
      of NCT of Delhi, (2003) II SCC 367, Namdeo v. State of                        c
      Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Monda/ v.
      State ofW.B., (2010) 12 SCC 911
       13. The appellants are convicted for the offence under Section
302 read with Section 34 !PC. Learned counsel for appellants-accused
(A-2 to A-4 and A-6) submitted that accused Sudip Kumar Sen (A-3)                   D
and Apu Chatterjee (A-6) are said to have abused the deceased and
Tapas Das (A-2) and Sankar Das (A-4) are alleged to have caught hold
of the deceased and there is no evidence that A-2 to A-4 and A-6 have
shared common intention with other co-accused to fire at the deceased
and therefore conviction of these accused under Section 302 read with
Section 34 !PC is not sustainable.                                                  E

       14. Section 34 !PC embodies the principle ofjoint liability in the
doing of a criminal act and essence of that liability is the existence of
common intention. Common intention implies acting in concert and
existence of a pre-arranged plan which is to be proved/inferred either
from the conduct of the accused persons or from attendant                           F
circumstances. To invoke Section 34 lPC, it must be established that the
criminal act was done by more than one person in furtherance of common
intention of all. It must, therefore, be proved that:- (i) there was common
intention on the part of several persons to commit a particular crime
and (ii) the crime was actually committed by them in furtherance of that            G
common intention. Common intention implies pre-arranged plan. Under
Section 34 !PC, a pre-concert in the sense of a distinct previous plan is
not necessary to be proved. The essence of liability under Section 34
!PC is conscious mind of persons participating in the criminal action to
bring about a particular result. The question whether there was any
common intention or not depends upon inference to be drawn from the                 H
622                SUPREME COURT REPORTS                        [2016] 1 S.C.R.


A     proved facts and circumstances of each case. The totality of the
      circumstances must be taken into consideration in arriving at the
      conclusion whether the accused had a common intention to commit an
      offern~e with which they could be convicted.

              15. Considering the facts and circumstances of the case in hand,
B     it is e:vident that there was prior concert and that the appellants have
      acted in furtherance of common intention. As seen from the evidence
      of PW-6, all the appellants and another co-accused Sk. Kochi were
      doing illegal business of extorting money from the flat owners. On the
      date of occurrence, all the appellants and another co-accused Sk. Koc hi
      came together and Sudip Kumar Sen@ Biltu (A-3) started abusing the
c     deceased and Apu Chatterjee (A-6) exhorted others that if the men of
      Khoka were not killed, there would be no peace. On such exhortation,
      Tapas Das and Sankar Das (A-2 and A-4) caught hold of the deceased
      and Gautam Ghosh and Sk. Kochi (A-1 and A-5) fired at the deceased.
      Facts and circumstances clearly establish meeting of minds and common
D     intention of the appellants in committing the murder ofSaikat Saha and
      the appellants were rightly convicted under Section 302 read with Section
      34 !PC. No ground for interference under Article 136 of the Constitution
      oflndia is made out.
             16. In the result, all the appeals fail and are dismissed accordingly.
 E    Nidhi Jain                                                 Appeals dismissed.