high court 4.docx

8/18/2019 high court 4.docx

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Supreme Court of India

Mrinal Das & Ors vs State Of Tripura on 5 September, 2011

Ben!" #$ Sat!asivam, %$$ 'o(!ale

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1994 OF 2009

Mrinal Das Ors. .... A!!"llan#$s%

&"rs's

T(" S#a#" )* Tri!'ra ....

R"s!)n+"n#$s%

,ITH

CRIMINAL APPEAL NO. 1-19 2011


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$ARISIN OUT OF SLP $CRL.% N)./-22011 $ CRL.M.P. NO.

1-12 OF 200%

J U D M E N T

P. Sathasivam, J.

a) Criminal Appeal No. 1994 of 2009


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1) This appeal is filed aainst the final !"dment and order dated 29.01.200# passed $%

the &a"hati 'ih Co"rt, Aartala (enh in Criminal Appeal No. 90 of 200* +here$% the

ivision (enh of the 'ih Co"rt, on an appeal filed $% the State of Trip"ra-respondent

herein, reversed the order of a"ittal of the appellants herein dated 19.04.200* passed $% the Additional Sessions J"de, /est Trip"ra, ho+ai in Case S.T.

No. *4/T)2002 and onvited and sentened them to imprisonment for life "nder

Setion 302 read +ith Setion 34 of ndian Penal Code, 1#50 hereinafter referred to as

6PC6) +ith a fine of 7s.3000- eah, in defa"lt, to s"ffer a f"rther term of simple

imprisonment for three months.

$) Criminal Appeal No.1819 of 2011 S:P Crl.) 582#2011 Crl. ;.P.18#12 of 200#)

2) The onvited a"sed, Tapan as A-*) and &a"tam as A-11), aainst the same

order of the 'ih Co"rt dated 29.01.200# onfirmin their onvition "nder Setion

302 PC and imposin life sentene +ith a fine of 7s.3,000- eah, in defa"lt, to s"ffer

simple imprisonment for three months filed this appeal $% +a% of speial leave petition

+ith a dela% of 52 da%s. ela% ondoned. :eave ranted.

% Bri"* *a3#s

a% On 1.0.20005 a 6""#in7 8as 3)n"n"+ in ,"s#

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Santinaar S.(. Shool at the invitation of "rap"r :oal Committee of emorati

anta Pa"l P/-10, (en" 7an!an h"pi P/-11and Pra$ir (is+as P/-12 reahed Santinaar =err% &hat to ross the river on +a% to

home, on the other side of the river. At a$o"t 5.30 p.m., +hen Tapan Cha>$ra$ort% and

his ompanions disem$ar>ed from the $oat, 7atan S">ladas A-12) draed him do+n

and +hen he fell on the ro"nd, Tapan as A-*) and &a"tam as A-11) shot at him

a"sin severe $"llet in!"ries. After finishin their !o$, the assailants fled a+a%. The

vitim +as immediatel% ta>en to the loal hospital $"t as he +as sin>in, he +as referred

to &.(. 'ospital at Aartala for speiali?ed treatment.

The vitim died on the +a% to hospital.


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$) @n the ver% same da%, at a$o"t 0#3* p.m, one (a$"l e% P/-1) loded a =irst

nformation 7eport in short 6the =76) $ein =7 No. #*2000 +ith the Polie Station,

al%anp"r, /est Trip"ra, Trip"ra. @n the $asis of the =7, a ase +as reistered

"nder Setions 14#, 149, 325 and308 of the PC read +ith Setion 28 of the Arms At,19*9 aainst eiht persons, vi?., Somesh as A-8), ;rinal as A-4), Tapan as A-*),

Ashim (hattahar!ee A-2), Pradip as A-9), Shailendra as A-3), S"$al e$ A-10)

and &a"tam as A-11) and others.

) After the death of Tapan Cha>ra$ort%, Setion 302 PC +as also added aainst the

a"sed persons. "rin the investiation, the nvestiatin @ffier arrested 13 a"sed

persons and on ompletion, filed a report "nder Setion 183 of the Code of Criminal

Proed"re, 1983 hereinafter referred to as 6the Code6) "nder Setions

14#, 149, 325 and 302 PC and Setion 28 of the Arms At aainst Somesh as A-8),

;rinal as A-4), Tapan as A-*), Ashim (hattahar!ee A-2), Pradip as A-9),

Shailendra as A-3), S"$al e$ A-10), &a"tam as A-11), Anil as A-1), (i>ash as

A-5), Bttam Shil A-#), 7atan S">ladas A-12) and 7adha ant as A-13).

d) ide order dated 12.0#.2002, the Additional Sessions J"de, ho+ai, /est Trip"ra,

framed hares "nder Setions 14#, 149 and 302 PC aainst all the 13 a"sed persons.

Thereafter on 20.11.2002, on the re"est of the Speial P"$li Prose"tor to alter the

hares, the Additional Sessions J"de modified the hares "nder Setion 302 read

+ith Setion 34120( PC and Setion 28 of the Arms At.

e) "rin the reordin of evidene, on 15.05.2004, a"sed 7atan S">ladas A-12) filed

an appliation pra%in for rant of DpardonE and to treat him as an DapproverE +hih +as

ranted $% the trial Co"rt. After eFaminin all the +itnesses, the trial Co"rt, vide

!"dment dated 19.04.200*, a"itted Anil as A-1), Ashim (hattahar!ee A-2),

Shailendra as A-3), ;rinal as A-4), (i>ash as A-5), Somesh as A-8), Bttam

Shil A-#), Pradip as A-9), S"$al e$ A-10) and 7adha ant as A-13) of the

hares leveled aainst them and onvited Tapan as A-*) and &a"tam as A-11) for

the offenes p"nisha$le "nder Setion 302 of the PC and sentened them to s"ffer

rioro"s imprisonment for life and to pa% a fine of 7s.3,000- eah, in defa"lt, to f"rther

"ndero simple imprisonment for three months.

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f) Arieved $% the !"dment of the trial Co"rt, Tapan as A-*) and &a"tam as A-11)

filed an appeal $ein Criminal Appeal No. 48 of 200* in the &a"hati 'ih Co"rt,

Aartala (enh. The State of Trip"ra also filed Criminal Appeal No. 90 of 200* aainst

the order of a"ittal of ten a"sed persons $% the trial Co"rt. The 'ih Co"rt, $%imp"ned ommon !"dment dated 29.01.200#, dismissed the appeal filed $% the

onvited a"sed persons A-* and A-11) and partl% allo+ed the appeal filed $% the

State $% settin aside the a"ittal of fo"r persons, namel%, ;rinal as A-4), Pradip

as A-9), Somesh as A-8) and Anil as A-1) and onvited them "nder Setions

30234PC and sentened them +ith imprisonment for life +ith a fine of 7s.3000-

eah, in defa"lt, to s"ffer a f"rther term of simple imprisonment for three months.

) Arieved $% the ommon imp"ned !"dment dated 29.01.200# passed $% the

ivision (enh of the 'ih Co"rt, all the onvited a"sed persons filed these appeals

$efore this Co"rt $% +a% of speial leave. ide this Co"rtEs order dated 15.09.2009, the

name of Pradip as, appellant No.2 herein and A-9) $efore the trial Co"rt has $een

deleted from the arra% of the parties as he is not traea$le.

4) 'eard ;r. Sidharth :"thra, learned senior o"nsel for the appellants and ;r. An"!

Pra>ash, learned o"nsel for respondent-State.

:eal position +ith reard to interferene in Appeal aainst A"ittal

*) Sine the 'ih Co"rt has interfered in the ase of a"ittal, let "s onsider the eneral

priniples en"niated $% this Co"rt +ith reard to the same.

5) n State of &oa vs. San!a% Tha>ran G Anr. 2008) 3 SCC 8**, this Co"rt +hile

onsiderin the po+er of appellate o"rt to interfere in an appeal aainst a"ittal, after

advertin to vario"s earlier deisions on this point has onl"ded as "nder-

615.....+hile eFerisin the po+ers in appeal aainst the order of a"ittal the o"rt of

appeal +o"ld not ordinaril% interfere +ith the order of a"ittal "nless the approah of

the lo+er o"rt is vitiated $% some manifest illealit% and the onl"sion arrived at

+o"ld not $e arrived at $% an% reasona$le person and, therefore, the deision is to $e

haraterised as perverse. ;erel% $ea"se t+o vie+s are possi$le, the o"rt of appeal

+o"ld not ta>e the vie+ +hih +o"ld "pset the !"dment delivered $% the o"rt $elo+.

'o+ever, the appellate o"rt has a po+er to revie+ the evidene if it is of the vie+ that

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the vie+ arrived at $% the o"rt $elo+ is perverse and the o"rt has ommitted a

manifest error of la+ and inored the material evidene on reord. A d"t% is ast "pon

the appellate o"rt, in s"h ir"mstanes, to reappreiate the evidene to arrive at a

!"st deision on the $asis of material plaed on reord to find o"t +hether an% of the

a"sed is onneted +ith ommission of the rime he is hared +ith.6


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8) n Chandrappa and @thers vs. State of arnata>a 2008) 4 SCC 41*, +hile

onsiderin the similar iss"e, namel%, appeal aainst a"ittal and po+er of the

appellate o"rt to reappreiate, revie+ or reonsider evidene and interfere +ith the

order of a"ittal, this Co"rt, reiterated the priniples laid do+n in the a$ove deisionsand f"rther held that-

642.....The follo+in eneral priniples reardin po+ers of the appellate o"rt +hile

dealin +ith an appeal aainst an order of a"ittal emere

1) An appellate o"rt has f"ll po+er to revie+, reappreiate and reonsider the evidene

"pon +hih the order of a"ittal is fo"nded.

2) The Code of Criminal Proed"re, 1983 p"ts no limitation, restrition or ondition oneFerise of s"h po+er and an appellate o"rt on the evidene $efore it ma% reah its

o+n onl"sion, $oth on "estions of fat and of la+.

3) ario"s eFpressions, s"h as, 6s"$stantial and ompellin reasons6, 6ood and

s"ffiient ro"nds6, 6ver% stron ir"mstanes6, 6distorted onl"sions6, 6larin

mista>es6, et. are not intended to "rtail eFtensive po+ers of an appellate o"rt in an

appeal aainst a"ittal. S"h phraseoloies are more in the nat"re of 6flo"rishes of

lan"ae6 to emphasise the rel"tane of an appellate o"rt to interfere +ith a"ittal

than to "rtail the po+er of the o"rt to revie+ the evidene and to ome to its o+nonl"sion.

4) An appellate o"rt, ho+ever, m"st $ear in mind that in ase of a"ittal, there is

do"$le pres"mption in favo"r of the a"sed. =irstl%, the pres"mption of innoene is

availa$le to him "nder the f"ndamental priniple of riminal !"rispr"dene that ever%

person shall $e pres"med to $e innoent "nless he is proved "ilt% $% a ompetent o"rt

of la+. Seondl%, the a"sed havin se"red his a"ittal, the pres"mption of his

innoene is f"rther reinfored, reaffirmed and strenthened $% the trial o"rt.

*) f t+o reasona$le onl"sions are possi$le on the $asis of the evidene on reord, the

appellate o"rt sho"ld not dist"r$ the findin of a"ittal reorded $% the trial o"rt.6

The same priniples have $een reiterated in several reent deisions of this Co"rt

vide State of Bttar Pradesh vs. Jaram and @thers, 2009) 18 SCC 40*, Sidhartha

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ashisht alias ;an" Sharma vs. State NCT of elhi) 2010) 5 SCC 1, (a$" vs. State of

erala, 2010) 9 SCC 1#9, &anpat vs. State of 'ar%ana and @thers, 2010) 12 SCC

*9, S"nil "mar Sam$h"da%al &"pta r.) and @thers vs. State of ;aharashtra, 2010)

13 SCC 5*8, State of Bttar Pradesh vs. Naresh and @thers, 2011) 4 SCC 324, State of

;adh%a Pradesh vs. 7amesh and Another, 2011) 4 SCC

8#5.

#) t is lear that in an appeal aainst a"ittal in the a$sene of perversit% in the

!"dment and order, interferene $% this Co"rt eFerisin its eFtraordinar% !"risdition,

is not +arranted. 'o+ever, if the appeal is heard $% an appellate o"rt, $ein the final

o"rt of fat, is f"ll% ompetent to re-

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appreiate, reonsider and revie+ the evidene and ta>e its o+n deision. n other

+ords, la+ does not presri$e an% limitation, restrition or ondition on eFerise of s"h

po+er and the appellate o"rt is free to arrive at its o+n onl"sion >eepin in mind

that a"ittal provides for pres"mption in favo"r of the a"sed. The pres"mption ofinnoene is availa$le to the person and in riminal !"rispr"dene ever% person is

pres"med to $e innoent "nless he is proved "ilt% $% the ompetent o"rt. f t+o

reasona$le vie+s are possi$le on the $asis of the evidene on reord, the appellate o"rt

sho"ld not dist"r$ the findins of a"ittal. There is no limitation on the part of the

appellate o"rt to revie+ the evidene "pon +hih the order of a"ittal is fo"nd and to

ome to its o+n onl"sion. The appellate o"rt an also revie+ the onl"sion arrived

at $% the trial Co"rt +ith respet to $oth fats and la+. /hile dealin +ith the appeal

aainst a"ittal preferred $% the State, it is the d"t% of the appellate o"rt to marshal

the entire evidene on reord and onl% $% ivin oent and ade"ate reasons set aside

the !"dment of a"ittal. An order of a"ittal is to $e interfered +ith onl% +hen there

are 6ompellin and s"$stantial reasons6 for doin so. f the order is 6learl%

"nreasona$le6, it is a ompellin reason for interferene. /hen the trial Co"rt has

inored the evidene or misread the material evidene or has inored material

do"ments li>e d%in delarationreport of $allisti eFperts et., the appellate o"rt is

ompetent to reverse the deision of the trial Co"rt dependin on the materials plaed.

9) /ith the a$ove priniples, let "s anal%se the reasonins and "ltimate onl"sion ofthe 'ih Co"rt in interferin +ith the order of a"ittal and also the onfirmation of

sentene on the t+o onvited appellants.

Hvidentiar% val"e of ApproverAomplie

10) (efore onsiderin the imp"ned !"dment on merits, inasm"h as the 'ih Co"rt

heavil% relied on the evidene of the 6approver6, let "s find o"t the leal position a$o"t

the evidentiar% val"e of 6approver6 and its aepta$ilit% +ith or +itho"t orro$oration.

11) Tho"h a onvition is not illeal merel% $ea"se it proeeds on the "norro$orated

testimon% of an approver, %et the "niversal pratie is not to onvit "pon the testimon%

of an aomplie "nless it is orro$orated in material parti"lars.


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The evidene of an approver does not differ from the evidene of an% other +itness save

in one parti"lar aspet, namel%, that the evidene of an aomplie is rearded a$

initio as open to rave s"spiion.

12) f the s"spiion +hih attahes to the evidene of an aomplie $e not removed,

that evidene sho"ld not $e ated "pon "nless orro$orated in some material

parti"larsI $"t if the s"spiion attahin to the aomplieEs evidene $e removed, then

that evidene ma% $e ated "pon even tho"h "norro$orated, and the "ilt of the

a"sed ma% $e esta$lished "pon the evidene alone.

13) n order to "nderstand the orret meanin and appliation of this term, it is

desira$le to mention Setion 133 of the ndian Hvidene At, 1#82 alon +ith

ll"stration $) to Setion 114 +hih read as "nder-

6133. Aomplie .- An aomplie shall $e a ompetent +itness aainst an a"sed

personI and a onvition is not illeal merel% $ea"se it proeeds "pon the

"norro$orated testimon% of an aomplie.6

ll"stration $) to Setion 114 6$) The Co"rt ma% pres"me that an aomplie is

"n+orth% of redit, "nless he is orro$orated in material parti"lars.6

ealin +ith the sope and am$it of the a$ove-noted t+o provisions, this Co"rt, in (hiva

o"l" Patil v. State of ;aharahshtra, A7 1953 SC *991953) 3 SC7 #30 has held that

$oth the setions are part of one s"$!et and have to $e onsidered toether. t has

f"rther $een held-

6The om$ined effet of Setions 133 and ll"stration $) to Setion 114, ma% $e stated as

follo+s

Aordin to the former, +hih is a 7"le of la+, an aomplie is ompetent to ive

evidene and aordin to the latter, +hih is a 7"le of pratie it is almost al+a%s

"nsafe to onvit "pon his testimon% alone. Therefore, tho"h the onvition of ana"sed on the testimon% of an aomplie annot $e said to $e illeal %et the o"rts +ill,

as a matter of pratie, not aept the evidene of s"h a +itness +itho"t orro$oration

in material parti"lars.6

14) The ver% same priniple +as reiterated in ;ohd. '"sain Bmar ohra et. v. . S.

alipsinh!i and Another et., 1959) 3 SCC 429 and it +as held --

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6.... The om$ined effet of Setions 133 and 114, ll"stration $) is that tho"h a

onvition $ased "pon aomplie evidene is leal, the Co"rt +ill not aept s"h

evidene "nless it is orro$orated in material parti"lars. The orro$oration m"st

onnet the a"sed +ith the rime. t ma% $e diret or ir"mstantial. t is not

neessar% that the orro$oration sho"ld onfirm all the ir"mstanes of the rime. t is

s"ffiient if the orro$oration is in material parti"lars. The orro$oration m"st $e from

an independent so"re. @ne aomplie annot orro$orate another.6

1*) /hile onsiderin the validit% of approverEs testimon% and tests of redi$ilit%, this

Co"rt, inSar+an Sinh So 7attan Sinh vs. State of P"n!a$ A7 19*8 SC 538 has held as

"nder-

68.....An aomplie is "ndo"$tedl% a ompetent +itness "nder the ndian Hvidene At.

There an $e, ho+ever, no do"$t that the ver% fat that he has partiipated in the

ommission of the offene introd"es a serio"s stain in his evidene and Co"rts are

nat"rall% rel"tant to at on s"h tainted evidene "nless it is orro$orated in material

parti"lars $% other independent evidene. t +o"ld not $e riht to eFpet that s"h

independent orro$oration sho"ld over the +hole of the prose"tion stor% or even all

the material parti"lars. f s"h a vie+ is adopted it +o"ld render the evidene of the

aomplie +holl% s"perfl"o"s. @n the other hand, it +o"ld not $e safe to at "pon s"h

evidene merel% $ea"se it is orro$orated in minor parti"lars or inidental details

$ea"se, in s"h a ase, orro$oration does not afford the neessar% ass"rane that themain stor% dislosed $% the approver an $e reasona$l% and safel% aepted as tr"e. ("t

it m"st never $e forotten that $efore the o"rt reahes the stae of onsiderin the

"estion of orro$oration and its ade"a% or other+ise, the first initial and essential

"estion to onsider is +hether even as an aomplie the approver is a relia$le +itness.

f the ans+er to this "estion is aainst the approver then there is an end of the matter,

and no "estion as to +hether his evidene is orro$orated or not falls to $e onsidered.

n other +ords, the appreiation of an approverEs evidene has to satisf% a do"$le test.

'is evidene m"st sho+ that he is a relia$le +itness and that is a test +hih is ommon

to all +itnesses. f this test is satisfied the seond test +hih still remains to $e applied is

that the approverEs evidene m"st reeive s"ffiient orro$oration. This test is speial to

the ases of +ea> or tainted evidene li>e that of the approver.....



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#.....Hver% person +ho is a ompetent +itness is not a relia$le +itness and the test of

relia$ilit% has to $e satisfied $% an approver all the more $efore the "estion of

orro$oration of his evidene is onsidered $% riminal o"rts6

15) ="rther, in 7avinder Sinh v. State of 'ar%ana, 198*) 3 SCC 842, this Co"rt, +hileonsiderin the approverEs testimon% +ithin the meanin of Setion 133 of the ndian

Hvidene At, 1#82 has o$served --

612. An Approver is a most "n+orth% friend, if at all, and he, havin $arained for his

imm"nit%, m"st prove his +orthiness for redi$ilit% in Co"rt. This test is f"lfilled, firstl%,

if the stor% he relates involves him in the rime and appears intrinsiall% to $e a nat"ral

and pro$a$le atalo"e of events that had ta>en plae. Seondl%, one that h"rdle is

rossed, the stor% iven $% an approver so far as the a"sed on trial is onerned, m"st

impliate him in s"h a manner as to ive rise to a onl"sion of "ilt $e%ond reasona$le

do"$t. n a rare ase, ta>in into onsideration all the fators, ir"mstanes and

sit"ation overnin a parti"lar ase, onvition $ased on the "norro$orated evidene

of an approver onfidentl% held to $e tr"e and relia$le $% the Co"rt ma% $e permissi$le.

@rdinaril%, ho+ever, an approverEs statement has to $e orro$orated in material

parti"lars $ridin losel% the distane $et+een the rime and the riminal. Certain

linhin feat"res of involvement dislosed $% an approver appertainin diretl% to an

a"sed, if relia$le, $% the to"hstone of other independent redi$le evidene, +o"ld

ive the needed ass"rane for aeptane of his testimon% on +hih a onvition ma% $e $ased.6

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18) n A$d"l Sattar v. Bnion Territor%, Chandiarh, 19#* S"pp) SCC *99 +here the

prose"tion had so"ht to prove its ase $% rel%in "pon the evidene of the approver, it

+as held that the approver is a ompetent +itness $"t the position in la+ is fairl% +ell

settled that on the "norro$orated testimon% of the approver, it +o"ld $e ris>% to $asethe onvition, parti"larl%, in respet of a serio"s hare li>e m"rder. @ne the

evidene of the approver is fo"nd to $e not relia$le, the +orth of his evidene is lost and

s"h evidene, even $% see>in orro$oration, annot $e made the fo"ndation of a

onvition.

1#) The a$ove said ratio has $een reaffirmed and reiterated $% this Co"rt in S"resh

Chandra (ahri v. State of (ihar 199* S"pp 1) SCC #0)I 7amprasad v. State of

;aharashtra, A7 1999 SC 1959 1999 Cri :J 2##9) and Nara%an Chetanram

Cha"dhar% v. State of ;aharashtra, 2000) # SCC 4*8.

19) n Nara%an Chetanram Cha"dhar% s"pra), it +as f"rther held that for orro$orative

evidene, the o"rt m"st loo> at the $road spetr"m of the approverEs version and then

find o"t +hether there is other evidene to orro$orate and lend ass"rane to that

version. The nat"re and eFtent of s"h orro$oration ma% depend "pon the fats of

different ases.

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Corro$oration need not $e in the form of o"lar testimon% of +itnesses and ma% even

$e in the form of ir"mstantial evidene. Corro$orative evidene m"st $e independent

and not va"e or "nrelia$le.

20) Similar "estion aain ame "p for onsideration $efore this Co"rt in . 'ashim v

State of Tamil Nad", 200*) 1 SCC 238 200* Cri :J 143 and Sitaram Sao ;"neri v

State of Jhar>hand, 2008) 12 SCC 530 +herein this Co"rt has held that

625. Setion 133 of the Hvidene At eFpressl% provides that an aomplie is a

ompetent +itness and the onvition is not illeal merel% $ea"se it proeeds on an

"norro$orated testimon% of an aomplie. n other +ords, this setion renders

admissi$le s"h "norro$orated testimon%. ("t this Setion has to $e read alon

+ithSetion 114, ill"stration

$). The latter setion empo+ers the Co"rt to pres"me the eFistene of ertain fats and

the ill"stration el"idates +hat the Co"rt ma% pres"me and ma>e lear $% means of

eFamples as to +hat fats the Co"rt shall have reard in onsiderin +hether or not

maFims ill"strated appl% to a iven ase. ll"stration $) in eFpress terms sa%s that

aomplie is "n+orth% of redit "nless he is orro$orated in material parti"lars. The

Stat"te permits the onvition of an a"sed on the $asis of "norro$orated testimon% of

an aomplie $"t the r"le of pr"dene em$odied in ill"stration

$) to Setion 114 of the Hvidene At stri>es a note of +arnin a"tionin the Co"rt thatan aomplie does not enerall% deserve to $e $elieved "nless orro$orated in material

parti"lars. n other +ords, the r"le is that the neessit% of orro$oration is a matter of

pr"dene eFept +hen it is safe to dispense +ith s"h orro$oration m"st $e learl%

present in the mind of the J"de6

21) n Sheshanna (h"manna


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aomplie is an% part% to the rime hared and some one +ho aids and a$ets the

ommission of rime. The nat"re of orro$oration is that it is onfirmator% evidene and

it ma% onsist of the evidene of seond +itness or of ir"mstanes li>e the ond"t of

the person aainst +hom it is re"ired. Corro$oration m"st onnet or tend to onnet

the a"sed +ith the rime. /hen it is said that the orro$orative evidene m"st

impliate the a"sed in material parti"lars it means that it is not eno"h that a piee

of evidene tends to onfirm the tr"th of a part of the testimon% to $e orro$orated. That

evidene m"st onfirm that part of the testimon% +hih s"ests that the rime +as

ommitted $% the a"sed. f a +itness sa%s that the a"sed and he stole the sheep and

he p"t the s>ins in a ertain plae, the disover% of the s>ins in that plae +o"ld not

orro$orate the evidene of the +itness as aainst the a"sed. ("t if the s>ins +ere

fo"nd in the a"sedEs ho"se, this +o"ld orro$orate $ea"se it +o"ld tend to onfirm

the statement that the a"sed had some hand in the theft.13. This Co"rt stated the la+ of orro$oration of aomplie evidene in several

deisions. @ne of the earlier deision is Sar+an Sinh v. State of P"n!a$, 19*8 SC7 9*3

and the reent deision is :ahi 7am v. State of P"n!a$, 1958) 1 SC7

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243. n Sar+an Sinh ase this Co"rt laid do+n that $efore the o"rt +o"ld loo> into the

orro$orative evidene it +as neessar% to find o"t +hether the approver or aomplie

+as a relia$le +itness. This Co"rt in :ahi 7am ase said that the first test of relia$ilit%

of approver and aomplie evidene +as for the o"rt to $e satisfied that there +as

nothin inherentl% impossi$le in evidene. After that onl"sion is reahed as to

relia$ilit% orro$oration is re"ired. The r"le as to orro$oration is $ased on the

reasonin that there m"st $e s"ffiient orro$orative evidene in material parti"lars to

onnet the a"sed +ith the rime.6

22) n ad" and @rs. vs. State of ;aharashtra, 1988) 3 SCC 5#, the sope of Setion

133 and ll"stration $) to Setion 114 of the ndian Hvidene At, 1#82 and nat"re of

r"le of orro$oration of aomplie evidene +as eFplained $% a three-J"de (enh of

this Co"rt in the follo+in manner

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624. n (hii$oni Sah" v. in the Priv% Co"nil after notiinSetion 133 and

ll"stration $) to Setion 114 of the Hvidene At o$served that +hilst it is not illeal to

at on the "norro$orated evidene of an aomplie, it is a r"le of pr"dene so

"niversall% follo+ed as to amo"nt almost to a r"le of la+ that it is "nsafe to at on the

evidene of an aomplie "nless it is orro$orated in material respets so as to

impliate the a"sedI and f"rther that the evidene of one aomplie annot $e "sed to

orro$orate the evidene of another aomplie. The r"le of pr"dene +as $ased on the

interpretation of the phrase 6orro$orated in material parti"lars6 in ll"stration $).

eliverin the !"dment of the J"diial Committee, Sir John (ea"mont o$served that

the daner of atin on aomplie evidene is not merel% that the aomplie is on his

o+n admission a man of $ad harater +ho too> part in the offene and after+ards to

save himself $etra%ed his former assoiates, and +ho has plaed himself in a position in

+hih he an hardl% fail to have a stron $ias in favo"r of the prose"tionI the realdaner is that he is tellin a stor% +hih in its eneral o"tline is tr"e, and it is eas% for

him to +or> into the stor% matter +hih is "ntr"e. 'e ma% impliate ten people in an

offene and the stor% ma% $e tr"e in all its details as to eiht of them $"t "ntr"e as to the

other t+o +hose names ma% have $een introd"ed $ea"se the% are enemies of the

approver. The onl% real safe"ard therefore aainst the ris> of ondemnin the innoent

+ith the "ilt% lies in insistin on independent evidene +hih in some meas"re

impliates eah a"sed.

2*. This Co"rt has in a series of ases eFpressed the same vie+ as reards aomplie

evidene. See State of (ihar v. (asa+an SinhI 'ari Charan "rmi v. State of

(iharI'aroon 'a!i A$d"lla v. State of ;aharashtraI and 7avinder Sinh v. State of

'ar%ana.) n 'ariharan, &a!endraad>ar, C.J., spea>in for a five-J"de (enh

o$served that the testimon% of an aomplie is evidene "nder Setion 3 of the

Hvidene At and has to $e dealt +ith as s"h. The evidene is of a tainted harater and

as s"h is ver% +ea>I $"t, nevertheless, it is evidene and ma% $e ated "pon, s"$!et to

the re"irement +hih has no+ $eome virt"all% a part of the la+ that it is orro$orated

in material parti"lars.6

23) n 7ampal Pith+a 7ahidas and @thers vs. State of ;aharashtra, 1994 S"pp 2) SCC

83, +hile onsiderin the ver% same provisions, this Co"rt has held that approverEs

evidene m"st $e orro$orated in material parti"lars $% diret or ir"mstantial

evidene. This Co"rt f"rther held that +hile onsiderin redi$ilit% of the approver and

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19/55

+eiht to $e attahed to his statement, the statement made in $ail appliation of

approver an $e loo>ed into $% the o"rt.


20/55

24) t is lear that one the evidene of the approver is held to $e tr"st+orth%, it m"st $e

sho+n that the stor% iven $% him so far as an a"sed is onerned, m"st impliate him

in s"h manner as to ive rise to a onl"sion of "ilt $e%ond reasona$le do"$t.

nsistene "pon orro$oration is $ased on the r"le of a"tion and is not merel% a r"le ofla+.

Corro$oration need not $e in the form of o"lar testimon% of +itnesses and ma% even $e

in the form of ir"mstantial evidene.

2*) eepin the leal priniples en"niated $% this Co"rt in respet of interferene $%

the appellate o"rt in ase of a"ittal $% the trial Co"rt and evidentiar% val"e of

6approver66aomplie6, let "s dis"ss the oral and do"mentar% evidene led in $% the

prose"tion and the defene.

ApproverEs evidene P/-5)


21/55

25) @ne 7atan S">ladas So Praf"ll%a S">ladas, oriinall% hared as a"sed No. 12,

after tenderin pardon +as eFamined as P/-5 on the side of the prose"tion. ;r.

Sidharth :"thra, learned senior o"nsel for the appellants s"$mitted that inasm"h as

P/-5 +aited for fo"r %ears to hane his mind and so"ht pardon for his ation, hisstatement is not relia$le and the o"rts $elo+ o"ht to have re!eted his testimon%. n

order to appreiate the said ontention, it is "sef"l to refer the relevant provisions of the

Code relatin to tender of pardon and po+er to diret tender of pardon to

approveraomplie.

28) Setions 305 and 308 of the Code read as "nder

6305. Tender of pardon to aomplie.--1) /ith a vie+ to o$tainin the evidene of an%

person s"pposed to have $een diretl% or indiretl% onerned in or priv% to an offeneto +hih this setion applies, the Chief J"diial ;aistrate or a ;etropolitan ;aistrate

at an% stae of the investiation or in"ir% into, or the trial of, the offene, and the

;aistrate of the first lass in"irin into or tr%in the offene, at an%, stae of the

in"ir% or trial, ma% tender a pardon to s"h person on ondition of his ma>in a f"ll

and tr"e dislos"re of the +hole of the ir"mstanes +ithin his >no+lede relative to

the offene and to ever% other person onerned, +hether as prinipal or a$ettor, in the

ommission thereof. 2) KKKKK 3) Hver% ;aistrate +ho tenders a pardon "nder s"$-

setion 1) shall reord-

a) 'is reasons for so doinI

$) /hether the tender +as or +as not aepted $% the person to +hom it +as made,

and shall, on appliation made $% the a"sed, f"rnish him +ith a op% of s"h reord

free of ost.

4) Hver% person aeptin a tender of pardon made "nder s"$-setion 1)-

a) Shall $e eFamined as a +itness in the o"rt of the ;aistrate ta>in oni?ane of the

offene and in the s"$se"ent trial, if an%I

$) Shall, "nless he is alread% on $ail, $e detained in "stod% "ntil the termination of the

trial.



22/55

*) /here a person has aepted a tender of pardon made "nder s"$-setion 1) and

has, $een eFamined "nder s"$- setion 4), the ;aistrate ta>in oni?ane of the

offene shall, +itho"t ma>in an% f"rther in"ir% in the ase.

a) Commit it for trial-

i) To the Co"rt of Session if the offene is tria$le eFl"sivel% $% that o"rt or if the

;aistrate ta>in oni?ane is the Chief J"diial ;aistrateI

ii) To a o"rt of Speial J"de appointed "nder the Criminal :a+ Amendment At 19*2

45 of 19*2), if the offene is tria$le eFl"sivel% $% that o"rtI

$) n an% other ase, ma>e over the ase to the Chief J"diial ;aistrate +ho shall tr%

the ase himself.6 6308. Po+er to diret tender of pardon.--At an% time after

ommitment of a ase $"t $efore J"dment is passed, the o"rt to +hih the

ommitment is made ma%, +ith a vie+, to o$tainin at the trial the evidene of an%person s"pposed to have $een diretl% or indiretl% onerned in, or priv% to, an% s"h

offene, tender a pardon on the same ondition to s"h person.6

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2#) The priniple of tenderin pardon to an aomplie is to "nravel the tr"th in a rave

offene so that "ilt of the other a"sed persons onerned in ommission of rime

o"ld $e $ro"ht home. The o$!et of Setion 305 of the Code of Criminal Proed"re,

1983 in short 6the Code6) is to allo+ pardon in ases +here heino"s offene is alleed tohave $een ommitted $% several persons so that +ith the aid of the evidene of the

person ranted pardon, the offene ma% $e $ro"ht home to the rest. This Setion

empo+ers the Chief J"diial ;aistrate or a ;etropolitan ;aistrate to tender a pardon

to a person s"pposed to have $een diretl% or indiretl% onerned in or priv% to an

offene to +hih the setion applies, at an% stae of the investiation or in"ir% or trial

of the offene on ondition of his ma>in a f"ll and tr"e dislos"re of the +hole of the

ir"mstanes +ithin his >no+lede relative to the offene. Bnder Setion 305 of the

Code, the ;aistrate of the =irst Class is also empo+ered to tender pardon to an

aomplie at an% stae of in"ir% or trial $"t not at the stae of investiation on

ondition of his ma>in f"ll and tr"e dislos"re of the entire ir"mstanes +ithin his

>no+lede relative to the rime. Setion 308 of the Code vests the Co"rt to +hih the

ommitment is made, +ith po+er to tender a pardon to an aomplie. An aomplie

+ho has $een ranted pardon "nder Setion 305 or 308 of the Code ets protetion from

prose"tion. /hen he is alled as a +itness for the prose"tion, he m"st ompl% +ith the

ondition of ma>in a f"ll and tr"e dislos"re of the +hole of the ir"mstanes +ithin

his >no+lede onernin the offene and to ever% other person onerned, +hether as

prinipal or a$ettor, in the ommission thereof and if he s"ppresses an%thin materialand essential +ithin his >no+lede onernin the ommission of rime or fails or

ref"ses to ompl% +ith the ondition on +hih the tender +as made and the P"$li

Prose"tor ives his ertifiate "nder Setion 30# of the Code to that effet, the

protetion iven to him an $e lifted.

29) Setion 305 4) ma>es it lear that the person aeptin a tender of pardon sho"ld

$e eFamined as a +itness first in the Co"rt of ;aistrate and s"$se"entl% in the trial

Co"rt. @ne an a"sed is ranted pardon "nder Setion 305, he eases to $e an a"sed

and $eomes +itness for the prose"tion.

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7eardin the dela% in tenderin pardon, it is not in disp"te that the trial ommened

on 11.03.2003 +ith the eFamination of prose"tion +itnesses. The approver - P/-5,

s"$mitted his appliation to $eome an approver on 15.05.2004 +ell $efore the

!"dment +hih +as delivered on 19.04.200*. /e have alread% "oted Setion 308 ofthe Code +hih denotes that pardon an $e tendered at an% time after ommitment of a

ase $"t $efore the !"dment is prono"ned. n vie+ of the same, inasm"h as the

approver s"$mitted his appliation +ell $efore the !"dment +as delivered, i.e., on

19.04.200*, the ontention reardin dela% on the part of P/-5 is lia$le to $e re!eted.

30) t is also not in disp"te that initiall%, P/-5 +as one of the 13 a"sed persons

hared +ith the offene of m"rder and in the arra% of a"sed, he +as sho+n as A-12).

Aordinl%, the prose"tion is !"stified in ta>in the stand that the approver P/-5)

+as diretl% or indiretl% onerned in or priv% to the offene of m"rder. n vie+ of the

same and in the liht of the lan"ae "sed in Setion 308 of the Code, the Co"rts $elo+

are riht in entertainin the evidene of P/-5 as approver. As reards the ondition

presri$ed in Setion 305 of the Code that the approver m"st ma>e a f"ll and tr"e

dislos"re of the +hole of the ir"mstanes, let "s anal%?e his statement +hether he

omplied +ith the a$ove said re"irement.

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25/55

31) n his eFamination-in-hief, he had learl% stated that he +as one of the a"sed in

the ase and d"rin investiation he +as arrested $% the polie. @n ompletion of

investiation, the investiatin aen% s"$mitted hare-sheet aainst him alon +ith

others for trial. n ateorial terms, he asserted that he +as a+are of the +hole inident +hih led to the >illin of Tapan Cha>ra$ort% and also asserted that he +as also

onneted +ith and involved in his m"rder alon +ith others.


26/55

'e hihlihted that on 21.0#.2000, there +as a p"$li meetin orani?ed $% CP ;)

part% at Santinaar. The deeased, Tapan Cha>ra$ort% and other part% leaders attended

the said meetin. n the %ear 2000, there +as a st"dent aitation at 7atia =err% &hat

aainst >idnappin of three st"dents and one la$o"rer $% the eFtremists. @n this iss"e,the st"dents had $lo>ed the road. The deeased, Tapan Cha>ra$ort%, $ein the loal

leader of the CP ;) part%, resisted the st"dents in ma>in aitation and $lo>in "p

the road. =or that matter, P/-5 alon +ith other a"sed developed a r"de in their

minds to ive Tapan Cha>ra$ort% a ood lesson. @n 30.0#.2000, at a$o"t 8# p.m., a

meetin +as onvened in the ho"se of the a"sed Tapan as A-*). All the a"sed

persons inl"din P/-5 +ere present in the said meetin +herein it +as deided to

eliminate Tapan Cha>ra$ort% as he stood aainst the st"dentsE movement. 'e f"rther

hihlihted that t+o da%s $a>, prior to holdin of meetin on 30.0#.2000, the% sa+

posters hanin on the +alls that a meetin of CP ;) +o"ld $e held at Santinaar on

31.0#.2000 at 300 p.m +here 7ama>anta Pa"l P/-10) and Tapan Cha>ra$ort% +o"ld

remain present. To materiali?e the plan hal>ed o"t in the meetin held on 30.0#.2000,

13 persons inl"din P/-5 had spread over in different ro"ps in different plaes to

eliminate Tapan Cha>ra$ort%. Bttam Shil A-#) +as dep"ted on the other side of the

river to let them informed +hen Tapan Cha>ra$ort% +o"ld $e proeedin to+ards

(aan (a?ar on onl"sion of meetin. 7adha ant as A-13), Ashim (hattahar!ee A-

2), (i>ash as A-5), ;rinal as A-4), Shailendra as A-3) and P/-5 +ere +aitin at

(aan (a?ar.


27/55

Another ro"p of persons onsistin of Tapan as A-*), &a"tam as A-11), Somesh

as A-8), Pradip as A-9) +ere +aitin in the ho"se of Anil as A-1). All +ere

>eepin +ath and o$servin the sit"ation till 4 p.m. Aro"nd 5 p.m., the% +ere informed

$% Anil as A-1) that the meetin at Santinaar had $een over and the partiipants ofthe said meetin had started for the =err% &hat to ross the river. The persons

assem$led in the ho"se of Anil as A-1) started for =err% &hat. @n seein them,

another ro"p inl"din P/-5 +aitin at (aan (a?ar also follo+ed them. All the

aforesaid 13 persons reahed =err% &hat aro"nd 5.1* p.m. After reahin there, the%

fo"nd the $oat arr%in Tapan Cha>ra$ort%, 7ama>anta Pa"l P/-10 and 910 other

persons in the middle of the river. As soon as Tapan Cha>ra$ort% and others ot do+n

from the $oat, one of the a"sed sho"ted to atta> him. /hile Tapan Cha>ra$ort% +as

+ashin his feet in the river +ater, s"ddenl%, P/-5 a"ht hold of him and draed him

do+n on the side of the river. 'e fell on the ro"nd +ith his $a> side "p. At that point

of time, Tapan as A-*) and &a"tam as A-11) fired t+o ro"nds of $"llet from their

pistols on Tapan Cha>ra$ort%. Sim"ltaneo"sl%, a $om$ had eFploded on the other side

of the river. The +itnesses +ho +ere +aitin in the passener shed to esort the vitim

r"shed to the plae of o"rrene. @n seein them, all the assailants fled to+ards so"th-

east diretion. P/-5 rossed the river alon +ith others ta>in the ro"te of 7atia to

oneal themselves. The% +ere advised $% Tapan as A-*) and &a"tam as A-11) to

>eep themselves onfined in their respetive ho"ses. @n the follo+in da%, P/-5 ame

to >no+ from loal ne+s $roadasted $% the All ndia 7adio that Tapan Cha>ra$ort%died follo+in the "n shots.

32) 7eardin his hane of mind, P/-5 eFplained that he $eame perpleFed $% the

death of Tapan Cha>ra$ort%. 'e f"rther eFplained that o"t of repentane, he one made

an attempt to ommit s"iide $% hanin himself at his residene in the middle of the

month of ;arh, 2004. Thereafter, he deided to div"le the +hole inident leadin to

the >illin of Tapan Cha>ra$ort% $efore the Co"rt. 'e also asserted that he had deided

to dislose the +hole inident vol"ntaril% on the advise of the mem$ers of his famil%. 'e

identified all the a"sed persons in the Co"rt $% name and fae.


28/55

33) n ross-eFamination, P/-5 deposed that the polie arrested him in onnetion +ith

this ase one da% after the o"rrene. 'e +as in polie "stod% for eiht da%s and,

thereafter, on eFpir% of polie remand, he +as ranted $ail. 'e asserted that d"rin his

sta% in polie "stod%, he +as not interroated $% polie. A$o"t his hane of mind, inross-

eFamination, he eFplained that sine 31.0#.2000 till mid of ;arh, 2004, he had $een

r"nnin amo>. "rin the aforesaid intervenin period, he did not meet an% people to

eFpress his mental aon%. 'e also asserted that he lost his mental peae as the m"rder

of Tapan Cha>ra$ort% +as ta>en plae $efore his o+n e%es and he +as also diretl%

involved in his >illin. 'e denied that he deposed falsel%. 'e also denied that he +as

provo>ed $% the CP ;) part% that if he t"rns to $e an approver, he +o"ld $e iven a

s"ita$le !o$.


29/55

34) A readin of the entire evidene of P/-5 ma>es it lear that the reason for hane of

his mind for tenderin pardon is aepta$le and in t"ne +ith the onditions presri$ed

in Setions 305 and308 of the Code. The trial J"de, +ho had the li$ert% of notin his

appearane and reorded his evidene, $elieved his version +hih +as rihtl% aepted $% the 'ih Co"rt. @n oin thro"h his entire evidene, the onditions stated

in Setions 305 and 308 of the Code are f"ll% omplied +ith and +e aept his

statement and on"r +ith the deision arrived at $% the o"rts $elo+.

Corro$orative evidene +ith reard to the statement of P/-5

3*) n the =7, the follo+in persons have $een named as a"sed relatin to the

o"rrene, namel%, Anil as A-1), Ashim (hattahar!ee A-2), Shailendra as A-3),

;rinal as A-4), Tapan as A-*), (i>ash as A-5), Somesh as A-8), Bttam Shil A-#), Pradip as A-9), S"$al e$ A-10), &a"tam as A-11), 7atan S">ladas A-12)

t"rned approver) and 7adha ant as A-13).

35) 7atan S">ladas +ho t"rned as an DapproverE and +as eFamined as P/-5, named all

the 13 a"sed inl"din himself). 'e mentioned the follo+in persons as a"sed,

namel%, Anil as A-1), Ashim (hattahar!ee A-2), Shailendra as A-3), ;rinal as

A-4), Tapan as A-*), (i>ash as A-

5), Somesh as A-8), Bttam Shil A-#), Pradip as A-9), S"$al e$ A-10), &a"tamas A-11), and 7adha ant as A-13).

http://indiankanoon.org/doc/92983/http://indiankanoon.org/doc/92983/http://indiankanoon.org/doc/455468/http://indiankanoon.org/doc/92983/http://indiankanoon.org/doc/92983/http://indiankanoon.org/doc/455468/http://indiankanoon.org/doc/455468/http://indiankanoon.org/doc/92983/http://indiankanoon.org/doc/455468/http://indiankanoon.org/doc/92983/http://indiankanoon.org/doc/455468/


30/55

38) Amon the 13 a"sed, +e are onerned onl% +ith Tapan as A-*) and &a"tam

as A-11) in these appeals, +ho +ere onvited $% the trial Co"rt and their onvition

+as onfirmed $% the 'ih Co"rt and Somesh as A-8), ;rinal as A-4) and Anil as

A-1), +ho +ere a"itted $% the trial Co"rt and onvited $% the 'ih Co"rt. HFept thea$ovementioned * a"sed persons, +e are not onerned +ith others. Tapan as A-*)

+as identified $% (a$"l e% P/-1), Nehar 7an!an e$ P/-4), (idh" Bran P/-8)

and Prana$ Cha>ra$ort% P/-#). Somesh as A-8) +as identified $% (a$"l e% P/-1)

and (idh" Bran P/-8). ;rinal as A-4) +as identified $% (a$"l e% P/-1) and

Nehar 7an!an e$ P/-4). Anil as A-1) +as identified $% Nehar 7an!an e$ P/-4)

and Prana$ Cha>ra$ort% P/-#). &a"tam as A-11) +as identified $% (a$"l e% P/-

1), Nehar 7an!an e$ P/-4), (idh" Bran P/-8) and Prana$ Cha>ra$ort% P/-#).

Tho"h Pradip as A-9) +as identified $% (a$"l e% P/-1), Nehar 7an!an e$ P/-

4), (idh" Bran P/-8) and Prana$ Cha>ra$ort% P/-#), inasm"h as his name has

$een deleted from the arra% of the appellants vide this Co"rtEs order dated 15.09.2009,

there is no need to onsider his ase in these appeals.

3#) No+ let "s anal%se the +itnesses relied on $% the prose"tion.

H%e-+itnesses in the $oat


31/55

39) (a$"l e% - P/-1 identified Somesh as A-8), ;rinal as A-4), Tapan as A-*),

&a"tam as A-11), Ashim (hattahar!ee A-2), S"$al e$ A-10), Shailendra as A-3)

and Pradip as A-9). n his evidene, he deposed that Tapan Cha>ra$ort%, the

deeased, +as >no+n to him. 'e admitted that he $elons to and +as

also the Seretar% of ra$ort% attended the said meetin. After ompletion of the meetin, all the

partiipants inl"din him left for al%anp"r $% rossin the river $% a $oat. At aro"nd

0500 p.m., after rossin the river, +hen Tapan Cha>ra$ort% +as +ashin his feet in

the river +ater, some misreants p"shed him and the% +ere also "sin a$"sive lan"ae

to+ards him. The% opened "n fire in the air. @n seein this, he alon +ith others fled to

the retirin shed near$% the river +here some mem$ers of the part% +ere +aitin for

them. 'e also notied that the assailants +ere r"nnin to+ards north and the% +ere

1*15 in n"m$er. /hen he alon +ith others ret"rned to the plae of o"rrene, the%

fo"nd Tapan Cha>ra$ort% l%in on the ro"nd in in!"red ondition. The% too> Tapan

Cha>ra$ort% to al%anp"r 'ospital in a mo$ile polie van. @n the advise of the dotors,

Tapan Cha>ra$ort% +as shifted to &.(. 'ospital, Aartala. 'e admitted that he did not

o to &.(. 'ospital. 'o+ever, he ame to learn that on the +a% to &.(. 'ospital, Tapan

Cha>ra$ort% s""m$ed to his in!"ries. 'e alon +ith 7ama>anta Pa"l P/-10) and

others then +ent to their Part% offie and dis"ssed the matter and deided to lode aomplaint to the polie. Aordinl%, their Seretar%, S"nil e$ sri$ed an e!ahar as per

the version of P/-1 and after +ritin the same, he read over the same to him and after

satisf%in that it +as +ritten as per his version, he p"t his sinat"re therein. n the

+itness $oF, he identified his sinat"re +hih +as mar>ed as HF.1. 'e also informed the

Co"rt that the a"sed persons +ere the s"pporters of Conress ) part%. 'e also

larified that t+o of the misreants +ere s"pporters of Amara (enali Part%.

a) (a$"l e% +as eFamined as P/-1. n his evidene, he narrated the entire events

ommenin from onspira% endin +ith "nshot on the deeased - Tapan

Cha>ra$ort%.


32/55

Tho"h it +as pointed o"t that he had not stated all the a$ovementioned details in the

omplaint, on oin thro"h the same, +e are satisfied that all relevant details have

$een stated in the omplaint and the omission to mention is onl% nelii$le. :i>e+ise, it

+as ommended $% the o"nsel for the appellants that tho"h there +ere some poliepersonnel in the polie mo$ile van, P/-1 did not dislose the inident to an% of those

polie offiials travelin in the said vehile. =or this, P/-1 has eFplained that the% too>

the in!"red to al%anp"r 'ospital first and later on, in assoiation +ith his part%

s"pporters, he loded a omplaint. n s"h a sit"ation, it is $"t nat"ral that the person

+ho reeived "nshot in!"r% has to $e admitted in the hospital and onl% thereafter

an%$od% o"ld thin> of the neFt step inl"din ma>in a omplaint to the polie. /e are

satisfied that there is no infirmit% in the ond"t of P/-1 in not onve%in an%thin to

the polie personnel in the mo$ile van and even his interation +ith his part%

ollea"es. P/-1 has also admitted that Tapan Cha>ra$ort% +as the Seretar% of


33/55

$) The other e%e-+itness is Nitai as P/-3), +ho +as in the $oat. t +as he, +ho

identified 7atan S">ladas A-12), 7adha ant as A-13) and (i>ash as A-5) as the

mem$ers of atta>in ro"p. 'e also admitted that the deeased Tapan Cha>ra$ort%

+as >no+n to him. :i>e P/-1, he also eFplained that the meetin +as held at Santinaar $et+een 300 p.m. to *4* p.m. 'e alon +ith Tapan Cha>ra$ort% and others reahed

Santinaar thro"h =err% &hat. The% rossed the river $% $oat and ot do+n on the

other side of the river and in that proess, aordin to him, he heard so"nd of "nshot

and sim"ltaneo"sl% a $om$ +as h"rled from the other side of the river. "e to fear,

the% fled at a distane of 10 "$is from the plae of o"rrene and some people +ho

+ere +aitin in the passener shed r"shed to the spot. /hen he alon +ith others

ret"rned to the plae of o"rrene, he fo"nd Tapan Cha>$ra$ort% l%in on the ro"nd

in in!"red ondition. Apart from three persons mentioned a$ove, he also stated that

a$o"t 1012 persons atta>ed Tapan Cha>ra$ort%. The misreants, after ommission of

offene, fled to+ards so"th-east diretion.

Thereafter, the% too> him to al%anp"r 'ospital in a polie van. 'e +as eFamined $%

the .@. on the same niht, that is, at a$o"t 9.00 p.m., to +hom also he dislosed the

names of the a$ove said a"sed persons. There is no ontradition +ith reard to the

identifiation of the said three assailants.

Tho"h o"nsel for the appellants has pointed o"t ertain omissions, on oin thro"h

the same, +e are satisfied that these omissions +ere not at all material and the 'ih

Co"rt has rihtl% relied on and aepted his evidene.

) Apart from e%e-+itnesses P/-1 and P/-3, another e%e-


34/55

+itness (en" 7an!an h"pi P/-11) +as also present in the $oat. Aordin to him, on

the fatef"l da%, that is, on 31.0#.2000 aro"nd 3.00 p.m., he met Tapan Cha>ra$ort% at

(aan (a?ar +ho re"ested him to o to Santinaar +ell ahead in onnetion +ith peae

meetin to $e held there and to s"pervise and see that ever%thin +as in order. Aordin to him, as direted $% Tapan Cha>ra$ort%, he reahed Santinaar at 300

p.m. 'e mentioned that Bttam Shil A-#) en"ired from him +hether Tapan

Cha>ra$ort% +o"ld attend the meetin. After onl"din the meetin, Tapan

Cha>ra$ort% and others inl"din P/-11 ot into the $oat to ross the river. /hile he

+as ettin do+n from the $oat, he heard h"e and r% and some one sa%in 6atta> them

atta> them6. 'e also heard a so"nd of eFplosion of $om$ on the other side of the river

and the so"nd of t+o ro"nds of fire.


35/55

Thereafter, he fled from the spot d"e to fear. Aordin to him, after 10 da%s of the

aforesaid o"rrene, he met 7ama>anta Pa"l P/-10) at (aan (a?ar. 'is evidene

sho+s that he +as also in the $oat, ho+ever, he onl% mentioned that a"sed Bttam Shil

A-#) +as fo"nd near the ven"e of the meetin and he narrated a$o"t the en"ir% made $% him +hether Tapan Cha>ra$ort% +o"ld attend the meetin. Hven, aordin to him,

the said Bttam Shil A-#) had disappeared from the plae of meetin.

d) The other three persons in the $oat +ere &anesh ol P/-2), 7ama>anta Pa"l P/-

10), and Pra$ir (is+as P/-12).

No do"$t, all the three +itnesses t"rned hostile sine the% ref"sed to identif% the

assailants $efore the Co"rt at the instane of the prose"tion. 'o+ever, as rihtl%

o$served $% the 'ih Co"rt, the% testified to the other parts of the o"rrenes"pportin the prose"tion ase that on the said date and time, a ro"p of misreants

had done to death the vitim Tapan Cha>ra$ort%. Tho"h, their evidene ma% not $e

f"ll% s"pporta$le to the prose"tion ase, ho+ever, as o$served $% the 'ih Co"rt, it is

lear from their statements that the% aompanied the deeased in the same $oat and

orro$orated +ith other +itnesses +ith reard to the fat"m of m"rder tho"h the% did

not identif% the persons onerned. t is settled position of la+ that the evidene of

hostile +itnesses need not $e re!eted in its entiret% $"t ma% $e relied on for

orro$oration.

H%e-+itnesses in the passener shed

40) No+, let "s dis"ss the e%e-+itnesses +ho +ere present in the passener shed.

a) The fo"r e%e-+itnesses, namel%, Nehar 7an!an e$ P/-4), (idh" Bran P/-8),

Prana$ Cha>ra$ort% P/-#) and Sat%endra Tanti P/-9) +ere +aitin in the passener

shed on the opposite $an> of the river and +hen the assailants had atta>ed the vitim

all of a s"dden, the% r"shed to the spot.

n his evidene, Nehar 7an!an e$ P/-4) admitted that Tapan Cha>ra$ort% +as

>no+n to him and he +as his maternal "nle. 'e +as the ie-Chairman of al%anp"r

Panha%at Soiet%. @n 31.0#.2000, in the evenin, at aro"nd 0530 p.m., he +ent to a

tea stall at (aan (a?ar and fo"nd Prana$ Cha>ra$ort% P/-#), %o"ner $rother of

Tapan Cha>ra$ort%.


36/55

Prana$ Cha>ra$ort% told him that Tapan had one to Santinaar to attend a meetin.

'e re"ested him to aompan% him to =err% &hat for esortin Tapan Cha>ra$ort% as

he +as r"nnin a ris> of his life $ea"se of some "nto+ard inident +hih too> plae in

his ho"se.


37/55

Sat%endra Tanti P/-9) and (idh" Bran P/-8) also aompanied them. 'e f"rther

eFplained that the% reahed =err% &hat at aro"nd 0*4* p.m. and too> shelter in the

passener shed as, at that time, it +as dri??lin. Aordin to him, +hile the% +ere

+aitin in the passener shed, he had notied Anil as A-1) proeedin h"rriedl%to+ards (aan (a?ar from the side of =err% &hat. After *8 min"tes, he had seen a$o"t

10 %o"ths proeedin to+ards =err% &hat from the diretion of (aan (a?ar. 'e

mentioned the name of fo"r persons, namel%, &a"tam as A-11), Pradip as A-9),

Tapan as A-*) and ;rinal as A-4) +ho +ere amon the %o"ths.

Those persons +ere +aitin in the =err% &hat. The distane of =err% &hat from

passener shed +o"ld $e 100 "$is. 'e notied Tapan Cha>ra$ort% and others ettin

do+n from the $oat and as soon as the% ot do+n, the misreants draed Tapan

Cha>ra$ort%. All the persons in the passener shed proeeded to+ards =err% &hat, at

that time, the% also heard the so"nd of $"rstin of $om$ as +ell as so"nd of "n fire.

The% $eame frihtened and retreated for a +hile, thereafter, the% proeeded to+ards

=err% &hat. After reahin there, the% fo"nd Tapan Cha>ra$ort% l%in on the ro"nd

+ith in!"ries.

The% lifted him and $ro"ht him on the main road and +ith the help of a Polie ;o$ile

an the% too> him to al%anp"r 'ospital. 'o+ever, he admitted that he did not

aompan% them. 'e asserted that after the ommission of offene the misreants fled

to+ards so"th. n ross-eFamination, he admitted that the deeased +as forefront leader

of the CP ;) part%. 'e denied the s"estion that the m"rder of Tapan Cha>ra$ort%

+as the res"lt of inter-Part% rivalr%.


38/55

$) NeFt +itness +ho +as present in the passener shed +as (idh" Bran, eFamined as

P/-8. n his eFamination-in-hief, he stated that Tapan Cha>ra$ort% +as m"rdered on

31.0#.2000 $% some misreants $elonin to B(:= eFtremists ro"p. 'e +as >illed at

Santinaar =err% &hat at aro"nd 0530 p.m. and aordin to him at the time ofo"rrene, he +as sittin in the passener shed +hih is a$o"t 100 "$is a+a% from

the plae of o"rrene. 'e also mentioned that $esides him Prana$ Cha>ra$ort% P/-

#), Nahar 7an!an e$ P/-4), Sat%endra Tanti P/-9) +ere also present there. 'e also

admitted that at that time it +as dri??lin. n order to protet themselves from the rain,

the% too> shelter in the passener shed at aro"nd 0*30 p.m. 'e also stated in the

eFamination-in-hief a$o"t the meetin at Santinaar and eFplained that the deeased

Tapan Cha>ra$ort% +ent to Santinaar to attend that peae meetin orani?ed $%


39/55

At a$o"t 0530 p.m., aordin to him, he notied that Tapan Cha>ra$ort% aompanied

$% a$o"t 1* persons rossin the river in a $oat. @ne 7ama>ant Pa"l P/-10) +as one of

the 1* persons +ho aompanied Tapan Cha>ra$ort%. S"ddenl%, he heard the so"nd of

t+o "n shots and immediatel% +hen he loo>ed for+ard, he sa+ a ro"p of personsr"nnin a+a% to+ards so"th-east diretion. At one, he alon+ith his ompanions

r"shed to =err% &hat and fo"nd Tapan Cha>ra$ort% in in!"red ondition. The% arried

him "pto main road and then the% too> him in a polie mo$ile van. 'e asserted that the

ro"p of persons +ho +ere fo"nd r"nnin a+a% from the =err% &hat +as the same

+hom he sa+ earlier proeedin to+ards =err% &hat from (aan (a?ar. 'e informed the

Co"rt that on 31.0#.2000, at aro"nd 1030 p.m. one polie offier sei?ed $lood stained

earth from Santinaar =err% &hat in his presene and dra+n sei?"re list +herein he

sined. 'e admitted his sinat"re fo"nd in the sei?"re list +hih +as mar>ed as HF.-3.

@ne S"!it as also sined the sei?"re list alon +ith him. 'e asserted that an% t+o

persons of the ro"p fired t+o shots on Tapan Cha>ra$ort%. 'e also informed the Co"rt

that $efore he heard the so"nd of firin, he sa+ a flash of fire +ithin the irle

omprisin 1214 persons.

The a"sed persons, namel%, Pradip as A-9), Tapan as A-

*), Somesh as A-8) and &a"tam as A-11) +ere identified in the Co"rt $% name and

fae $% P/-8. n ross-eFamination, it is tr"e that he informed the Co"rt that he does

not >no+ an% person named 7atan S">ladas, P/-5) approver.


40/55

) @ne Prana$ Cha>ra$ort% +as eFamined as P/-#. 'e +as one of the persons +aitin

in the passener shed at the relevant time. 'e admitted that Tapan Cha>ra$ort% +as his

eldest $rother. Aordin to him, prior to his death, he held man% responsi$le posts in

CP ;) Part%. (esides, he +as the ie Chairman of the al%anp"r Panha%at Soiet%.'e informed the Co"rt that on 31.0#.2000, his $rother +as >illed $% the misreants at

Santinaar =err% &hat. Aordin to him, on that da%, aro"nd 0*1* p.m., (idh" Bran

P/-8), Nehar 7an!an e$ P/-4), Sat%endra Tanti P/-9) and he himself +ere sittin

in the passener shed +hih is a$o"t 100 "$is a+a% from Santinaar =err% &hat. P/-

# also deposed that the% +ere +aitin in the passener shed to esort his $rother +ho

+as s"pposed to ret"rn from Santinaar after attendin a peae meetin. 'e eFplained

that from (aan (a?ar, the% +ent straiht to passener shed. 'e also stated that there

+as se"rit% threat on the life of his $rother $ea"se of +hih the% "sed to aompan%

and esort him +henever he o o"tside in onnetion +ith an% part% +or>.


41/55

/hen the% +ere +aitin in the passener shed, it +as dri??lin and at that time the% sa+

a ood n"m$er of persons proeedin to+ards =err% &hat o"t of them he reoni?ed

Tapan as A-*), &a"tam as A-11), Pradip as A-9) and Anil as A-1). 'e sa+ Anil

as A-1) omin h"rriedl% from the other side of the river. 'e deposed, as soon asTapan Cha>ra$ort% reahed near the $an> of the river he heard h"e and r% and at that

time he also heard so"nd of t+o ro"nds of fire. Thereafter, the% r"shed to the plae of

o"rrene, and then the misreants ran a+a% to+ards so"th-east diretion.

@n arrivin at the plae of o"rrene, he fo"nd Tapan l%in on the ro"nd +ith his

"pside do+n +ith t+o $"llet in!"ries one on the left side of his $a> and another on the

$a> of his head. The +o"nds +ere $leedin prof"sel%. /ith the help of others, he too>

his $rother "p to the main road and thereafter too> him to the hospital in a polie van.

As the ondition of his $rother +as alarmin, he +as shifted to &( 'ospital, Aartala

from al%anp"r hospital. 'e identified Anil as A-


42/55

1), Pradip as A-9), &a"tam as A-11) in the Co"rt $% name and fae. n ross-

eFamination, he denied the s"estion that he o"ld not reoni?e Tapan as A-*),

Pradip as A-9) and &a"tam as A-11). 'e also mentioned that 7ama>anta Pa"l P/-

10), Pra$ir (is+as P/-12), Nilai as P/-3), (en" 7an!an h"pi P/-11), S"!it as,S"$rata as, 7a!esh as +ere in the $oat alon +ith his $rother +hile rossin the river

d) Another +itness from the passener shed +as Sat%endra Tanti P/-9). :i>e other

+itnesses, namel%, P/s 4, 8 and #, he also eFplained the said inident. 'e admitted that

Tapan Cha>ra$ort% +as the ie Chairman, al%anp"r Panha%at Soiet% and held

several responsi$le posts in the CP ;) part%.

'e also admitted that Tapan +as related to his famil%. Sine, he informed the Co"rt that

he did not notie an% of the persons +hile omin o"t of the passener shed, he +asdelared as a hostile +itness from the side of the prose"tion.

Tho"h P/-9 t"rned hostile as stated earlier, he admitted that he alon +ith Prana$

Cha>ra$ort% P/-#), Nehar 7an!an e$ P/-4) and (idh" Bran P/-8) +ere sittin

in the passener shed +ith a vie+ to esort his $rother Tapan Cha>ra$ort%.

41) The anal%sis of statement of vario"s persons, parti"larl%, e%e-+itnesses learl%

strenthen the ase of P/-


43/55

5, approver, in all aspets inl"din onspira%, plannin to atta> the deeased for his

statement a$o"t the st"dentsE movement, at"al inident, role pla%ed $% the assailants

and s"$se"ent events after the "nshot till the death of the deeased Tapan

Cha>ra$ort%. /e are satisfied that $% these statements, the prose"tion hasstrenthened its ase thro"h P/-5 approver and there is no reason to dis$elieve his

version.

7eliane on the hostile +itness

42) n the ase on hand &anesh ol P/-2), Sat%endra Tanti P/-9), 7ama>anta Pa"l

P/-10) and Pra$hir (is+as P/-12) +ere delared as hostile +itnesses. t is settled la+

that orro$orated part of evidene of hostile +itness reardin ommission of offene is

admissi$le. The fat that the +itness +as delared hostile at the instane of the P"$liProse"tor and he +as allo+ed to ross-eFamine the +itness f"rnishes no !"stifiation

for re!etin en $lo the evidene of the +itness.


44/55

'o+ever, the Co"rt has to $e ver% aref"l, as prima faie, a +itness +ho ma>es different

statements at different times, has no reard for the tr"th. 'is evidene has to $e read

and onsidered as a +hole +ith a vie+ to find o"t +hether an% +eiht sho"ld $e

attahed to it. The Co"rt sho"ld $e slo+ to at on the testimon% of s"h a +itness,normall%, it sho"ld loo> for orro$oration +ith other +itnesses. ;erel% $ea"se a

+itness deviates from his statement made in the =7, his evidene annot $e held to $e

totall% "nrelia$le. To ma>e it lear that evidene of hostile +itness an $e relied "pon at

least "p to the eFtent, he s"pported the ase of prose"tion.

The evidene of a person does not $eome effaed from the reord merel% $ea"se he

has t"rned hostile and his deposition m"st $e eFamined more a"tio"sl% to find o"t as

to +hat eFtent he has s"pported the ase of the prose"tion.

43) n o"r ase, e%e +itnesses inl"din the hostile +itnesses, firml% esta$lished the

prose"tion version. =ive e%e-+itnesses, namel%, P/-1, P/-4, P/-5, P/-8 and P/-#

learl% identified t+o onvits-appellants, Tapan as A-*) and &a"tam as A-11). P/s

1, 4, 8 and # identified a"sed Pradip as A-9). P/s 1 G 8 identified a"sed Somesh

as A-8). P/s 1 G 4 identified ;rinal as A-4). P/s 4 G # identified Anil as A-1). t

is lear that 5 a"sed persons inl"din t+o onvits-appellants had $een identified $%

more than one e%e-+itnesses. t is also lear that 5 a"sed o"ld have $een identified $%

the e%e +itnesses tho"h all of them o"ld not have $een identified $% the same

assailants.


45/55

'o+ever, it is lear that t+o or more than 2 e%e-+itnesses o"ld identif% one or more

than one assailants. The eneral priniple of appreiatin evidene of e%e +itnesses, in

s"h a ase is that +here a lare n"m$er of offenders are involved, it is neessar% for the

Co"rt to see> orro$oration, at least, from t+o or more +itnesses as a meas"re ofa"tion. :i>e+ise, it is the "alit% and not the "antit% of evidene to $e the r"le for

onvition even +here the n"m$er of e%e +itnesses is less than t+o.


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44) t is +ell settled that in a riminal trial, redi$le evidene of even hostile +itnesses

an form the $asis for onvition. n other +ords, in the matter of appreiation of

evidene of +itnesses, it is not the n"m$er of +itnesses $"t "alit% of their evidene. As

rihtl% o$served $% the 'ih Co"rt, there are onl% siF a"sed persons namel%, Tapanas A-*), &a"tam as A-11), Pradip as A-9), ;rinal as A-4), Somesh as A-8)

and Anil as A-1) identified $% t+o or more e%e +itnesses +hile Tapan as A-*) and

&a"tam as A-11) +ere reoni?ed $% P/s 1, 4, 8 and # orro$orated $% P/-5

approver). Somesh as A-8) +as reoni?ed $% P/s-1 G 8, ;rinal as A-4) $% P/s 1

G 4 and Anil as A-1) $% P/s 4 G #, all of them $ein orro$orated $% P/-5

approver). f P/-5 approver) is inl"ded, there are three e%e-+itnesses +ho o"ld

identif% siF offenders inl"din t+o onvits-appellants.

nasm"h as +e +ere ta>en thro"h the entire evidene of the a$ovementioned

+itnesses, +e f"ll% endorse the vie+ eFpressed $% the 'ih Co"rt.

4*) No+ +e have to find o"t +hether the 'ih Co"rt is !"stified in interferin +ith the

order of a"ittal insofar as a"sed Anil as A-1), ;rinal as A-4), Somesh as A-8)

and Pradip as A-9) are onerned, in the liht of the priniples +hih +e have

eFplained in the earlier part of o"r !"dment. The trial Co"rt, after findin that the

fat"m of onspira% as dislosed $% the approver remains "ns"$stantiated for +ant of

independent orro$oratin evidene, a"itted them. Sine the 'ih Co"rt has reversed

the said deision of a"ittal and onvited the a"sed persons rel%in onSetion

34 PC, let "s find o"t +hether the 'ih Co"rt is !"stified in "psettin the order of

a"ittal into onvition. Setion 34 PC reads as "nder

http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/37788/


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634. Ats done $% several persons in f"rtherane of ommon intention.- /hen a riminal

at is done $% several persons in f"rtherane of the ommon intention of all, eah of

s"h persons is lia$le for that at in the same manner as if it +ere done $% him alone.6

The readin of the a$ove provision ma>es it lear that the $"rden lies on prose"tion toprove that the at"al partiipation of more than one person for ommission of riminal

at +as done in f"rtherane of ommon intention at a prior onept. ="rther, +here the

evidene did not esta$lish that parti"lar a"sed has dealt $lo+ the lia$ilit% +o"ld

devolve on others also +ho +ere involved +ith ommon intention and s"h onvition

in those ases are not s"staina$le. A lear distintion made o"t $et+een ommon

intention and ommon o$!et is that ommon intention denotes ation in onert and

neessaril% post"lates the eFistene of a pre-arraned plan impl%in a prior meetin of

the minds, +hile ommon o$!et does not neessaril% re"ire proof of prior meetin of

minds or pre-onept. Tho"h there is s"$stantial differene $et+een the t+o setions,

namel%, Setions 34and 149 PC, to some eFtent the% also overlap and it is a "estion to

$e determined on the fats of eah ase.

http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/999134/http://indiankanoon.org/doc/999134/http://indiankanoon.org/doc/37788/http://indiankanoon.org/doc/999134/


48/55

45) There is no $ar in onvitin the a"sed "nder s"$stantive setion read

+ith Setion 34 if the evidene disloses ommission of an offene in f"rtherane of the

ommon intention of them all. t is also settled position that in order to onvit a person

viario"sl% lia$le "nder Setion 34 or Setion 149 PC, it is not neessar% to prove thateah and ever% one of them had ind"led in overt ats in order to appl%Setion 34, apart

from the fat that there sho"ld $e t+o or more a"sed. T+o fats m"st $e esta$lished,

namel% a) ommon intention $) partiipation of a"sed in the ommission of an

offene. t re"ires a pre-arraned plan and pre-s"pposes prior onept. Therefore,

there m"st $e prior meetin of minds. t an also $e developed at the sp"r of the

moment $"t there m"st $e pre-arranement or pre-meditated onept. As rihtl%

o$served $% the 'ih Co"rt, tho"h the trial Co"rt +as of the vie+ that the evidene of

an approver ontains f"ll and orret version of the inident so far as partiipation of the

a"sed Tapan as A-*) and &a"tam as A-11), ho+ever, there is no pla"si$le reason

$% the trial Co"rt as to +h% the other part of the statement of the approver o"ld not $e

$elieved. /e have alread% pointed o"t that in order to see> the aid of Setion 34 PC, it is

not neessar% that individ"al at of the a"sed persons has to $e proved $% the

prose"tion $% diret evidene. Aain, as mentioned a$ove, ommon intention has to $e

inferred from proved fats and ir"mstanes and one there eFist ommon intention,

mere presene of the a"sed persons amon the assailants +o"ld $e s"ffiient proof of

their partiipation in the offene. /e aree +ith the onl"sion of the 'ih Co"rt that

the trial Co"rt failed to eFplain or add"e s"ffiient reasons as to +h% the other part ofthe evidene that the a"sed persons named $% the approver +ere fo"nd present in the

plae of o"rrene o"ld not $e $elieved for the p"rpose of invo>inSetion 34 +hen

t+o or more e%e-+itnesses orro$orated the testimon% of approver P/-5) speifiall%

namin siF a"sed persons inl"din the t+o onvited appellants.

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48) The eFistene of ommon intention amonst the partiipants in the rime is the

essential element for appliation of Setion 34 and it is not neessar% that the ats of

several persons hared +ith the ommission of an offene !ointl% m"st $e the same or

identiall% similar. /e have alread% pointed o"t from the evidene of e%e-+itnesses as +ell as the approver P/-5) that one Bttam Shil A-#) +as deplo%ed at the plae of

meetin at Santinaar for the p"rpose of ivin intimation to other a"sed persons

a$o"t the movement of the deeased. t is also seen from the evidene that one more

a"sed +as stationed on the shore of the river near (aan (a?ar. t is also seen from

the evidene that after the meetin, the $oat arr%in Tapan Cha>ra$ort% and other e%e-

+itnesses +as a$o"t to reah (aan (a?ar shore, a"sed Anil as A-1) +ho +as

deplo%ed there s"ddenl% left to+ards (aan (a?ar and +ithin fe+ min"tes 10 a"sed

persons r"shed to the $oat from (aan (a?ar. Thereafter, the o"rrene too> plae.



50/55

The materials plaed $% the prose"tion, parti"larl%, from the e%e-+itnesses, the

ommon intention an $e inferred amon the a"sed persons inl"din the siF persons

identified $% the e%e-+itnesses. f +e onsider the ase of the prose"tion in the liht of

the dislos"re made $% the approver P/-5), o"pled +ith the statement of e%e- +itnesses, it is lear that the 13 assailants had planned and remained present on the

shore of the river to eliminate Tapan Cha>ra$ort%. n vie+ of these materials, the 'ih

Co"rt is riht in appl%in Setion 34 PC and $asin onvition of siF a"sed persons

inl"din the t+o onvited appellants that is Tapan as A-*), &a"tam as A-11),

Pradip as A-9), Somesh as A-8), ;rinal as A-4) and Anil as A-1).

;edial evidene



51/55

4#) The otor +ho ond"ted the post mortem on the dead $od% +as eFamined as P/-

14 and his report has $een mar>ed as HF.8. The said report sho+s three fire arm +o"nds

on the dead $od% of the deeased. @ne, meas"rin 0.8* m. in radi"s over "pper part of

left anterior hest +all at posterior a"Filiar% plane, t+o, laerated in!"r% 3 ms. K .* m F $one deep oipital reion, and three, laerated in!"r%, 4 m F 1 m F $one deep over

oipital reion of s>"ll. P/-14 has ateoriall% stated that the first in!"r% +as

s"stained $% the deeased on his $a>. Aordin to him, in!"r% Nos. 2 and 3 miht $e

reeived $% the deeased $% the same $"llet if the $"llet had split. /e also verified the

post mortem eFamination report HF.8) and the medial evidene of P/-14 and find no

inonsisten% $et+een the ontents in his report HF. 8), his evidene as P/-14 and the

o"lar evidene of the approver P/-5). As rihtl% o$served $% the trial Co"rt and the

'ih Co"rt, the o"lar version i.e., evidene of the approver P/-5) stands orro$orated

$% the medial evidene of P/-14 and HF.8). /e on"r +ith the said onl"sion.


52/55

49) Tho"h ;r. Sidharth :"thra, learned senior o"nsel appearin for the appellants

pointed o"t ertain ontraditions in the statement of +itnesses +ith their previo"s

statements reorded d"rin investiation and +ith all their statements in the Co"rt, on

verifiation, +e are satisfied that those ontraditions, if an%, are onl% minimal and it +o"ld not affet the laim of the prose"tion ase. /e have alread% dis"ssed

ela$oratel% a$o"t the identifiation of the assailants $% the prose"tion +itnesses

inl"din the approver P/-5). Tho"h it +as pointed o"t $% the learned senior o"nsel

for the appellants that none of the seven +itnesses other than approver P/-5) o"ld

reoni?e all the assailants, in the earlier pararaphs, +e have pointed o"t that eah

+itness identified at least t+o assailants and approver P/-5) has identified all of them.

n a ase of this nat"re +here lare n"m$er of persons ommitted the rime, it is $"t

nat"ral that d"e to fear and onf"sion a +itness annot reoni?e and remem$er all the

assailants. f an% +itness f"rnishes all the details a"ratel%, in that event also it is the

d"t% of the Co"rt to verif% his version aref"ll%.

Conl"sion

*0) As dis"ssed earlier, the statement of approver P/-5) inspires onfidene

inl"din the onspira% part +hih ets f"ll s"pport from the narration of the

o"rrene iven $% the e%e-+itnesses, more parti"larl%, as to the deplo%ment of some

of the offenders for reportin to others a$o"t the movement of the vitim. As rihtl%

pointed o"t $% the 'ih Co"rt, there is nothin +ron in aeptin his entire statement

and tr"e dislos"re of the inident o"pled +ith orro$oration of his evidene +ith the

e%e +itnesses. /e f"ll% aree +ith the dis"ssion and "ltimate onl"sion arrived at $%

the 'ih Co"rt and "na$le to aept an% of the ontentions raised $% the learned senior

o"nsel for the appellants.

*1) Bnder these ir"mstanes, +e onfirm the "ltimate deision arrived at $% the 'ih

Co"rt. Conse"entl%, $oth the appeals fail and are aordinl% dismissed as devoid of

an% merit.

...........................................J.

P. SAT'ASA;) ...............................................J.

'.:. &@'A:H) NH/ H:'I


53/55

SHPTH;(H7 *, 2011.

Mrinal Das v. State of Tripura, (2011) 9 SCC 479Evidene !t, 1"72S. 1## r$% S. 114 &ll. (') !pprover Testion* Evidentiar* value Corro'oration +ule of prudene eld, t-ou- a

onvition is not illeal erel* 'eause it proeeds on unorro'orated testion* of an approver, *etuniversal pratie isnot to onvit upon testion* of an aoplie unless it is orro'orated in aterial partiulars &nsisteneuponorro'oration is 'ased on rule of aution and is not erel* a rule of la% Corro'oration need not 'e infor of oular testion* of %itnesses and a* even 'e in for of irustantial evidene /urt-er -eld, one evideneof approver is-eld to 'e trust%ort-*, it ust 'e s-o%n t-at stor* iven '* -i so far as an aused is onerned, ustipliateaused onerned in su- anner as to ive rise to a onlusion of uilt 'e*ond reasona'le dou't o%ever, %-ereevidene of approver is found unrelia'le, %ort- of -is evidene is lost and su- evidene, even '*

seein orro'orationannot 'e foundation of onvition n fats -eld, testion* of 3 approver %as found relia'le, %-i-%asorro'orated '* ot-er 3s ene, onvition 'ased t-ereon sustaina'le, (2011) 9 SCC 479!Criinal roedure Code, 197#Ss. #0, #07 and #0" Dela* in seein pardon and turnin approver (four *ears5 dela* fro inident) Effet onrelia'ilit* of testion* of approver eld, pardon an 'e sou-t and an 'e tendered at an* tie afteroitent of aase 'ut 'efore 6udent is pronouned &n instant ase, trial oened on 11#200# and 3 su'itted -isappliation to 'eoe approver on 12004 %ell 'efore 6udent %-i- %as delivered on 194200 ene,

ontention reardin dela* on part of 3 to see pardon t-ere'* ain -is testion* unr

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