REPORTABLE                       

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1994  OF 2009

Mrinal Das & Ors.           .... Appellant(s)

Versus

The State of Tripura               .... Respondent(s)

WITH

CRIMINAL APPEAL NO. 1719    2011 (ARISING OUT OF SLP (CRL.) No.6728/2011 ( CRL.M.P. NO.  17812 OF 2008)

J U D G M E N T  

P. Sathasivam, J.

a) Criminal Appeal No. 1994 of 2009

1)  This appeal is filed against the final judgment and order  

dated  29.01.2008 passed by the Gauhati High Court, Agartala  

Bench in Criminal Appeal No. 90 of 2005 whereby the Division  

Bench of the High Court, on an appeal filed by the State of  

Tripura-respondent herein, reversed the order of acquittal of  

the  appellants  herein  dated  19.04.2005  passed  by  the  

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Additional Sessions Judge, West Tripura, Khowai in Case S.T.  

No.  54(WT/K)/2002  and  convicted  and  sentenced  them  to  

imprisonment for life under Section 302 read with Section 34  

of Indian Penal Code, 1860 (hereinafter referred to as “IPC”)  

with a fine of Rs.3000/- each, in default, to suffer a further  

term of simple imprisonment for three months.

b) Criminal Appeal No.1719 of 2011  @ SLP (Crl.) 6728/2011 ( Crl. M.P.17812 of 2008)

2) The convicted accused, Tapan Das (A-5) and Gautam Das  

(A-11),  against  the  same  order  of  the  High  Court  dated  

29.01.2008 confirming their conviction under Section 302 IPC  

and imposing life sentence with a fine of Rs.3,000/- each, in  

default, to suffer simple imprisonment for three months filed  

this appeal by way of special leave petition with a delay of 62  

days.  Delay condoned.  Leave granted.

3) Brief facts:

a) On  31.08.2000,  a  meeting  was  convened  in  West  

Santinagar  S.B.  School  at  the  invitation  of  Durgapur  Local  

Committee of Democratic Youth Federation of India (in short  

“DYFI”).   After  the  meeting  was  over,  Tapan  Chakraborty,  

(since deceased), a leader of DYFI accompanied by Babul Dey  

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PW-1,  Ganesh  Kol  PW-2,  Nilai  Das  PW-3,  Ramakanta  Paul  

PW-10, Benu Ranjan Dhupi PW-11 and Prabir Biswas PW-12  

reached Santinagar Ferry Ghat to cross the river on way to  

home, on the other side of the river.  At about 6.30 p.m., when  

Tapan Chakbraborty and his companions disembarked from  

the boat, Ratan Sukladas (A-12) dragged him down and when  

he fell on the ground, Tapan Das (A-5) and Gautam Das (A-11)  

shot at him causing severe bullet injuries.  After finishing their  

job,  the  assailants  fled  away.   The  victim  was  immediately  

taken  to  the  local  hospital  but  as  he  was  sinking,  he  was  

referred to G.B. Hospital at Agartala for specialized treatment.  

The victim died on the way to hospital.   

(b)  On the very same day, at about 08:35 p.m, one Babul Dey  

(PW-1) lodged a First Information Report (in short “the FIR”)  

being  FIR  No.  85/2000  with  the  Police  Station,  Kalyanpur,  

West Tripura, Tripura.  On the basis of the FIR, a case was  

registered under Sections 148, 149, 326 and 307 of the IPC  

read  with  Section  27  of  the  Arms  Act,  1959  against  eight  

persons, viz., Somesh Das (A-7), Mrinal Das (A-4), Tapan Das  

(A-5), Ashim Bhattacharjee (A-2), Pradip Das (A-9), Shailendra  

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Das  (A-3),  Subal  Deb  (A-10)  and  Gautam  Das  (A-11)  and  

others.   

c) After the death of Tapan Chakraborty, Section 302 IPC  

was  also  added  against  the  accused  persons.   During  the  

investigation,  the  Investigating  Officer  arrested  13  accused  

persons and on completion, filed a report under Section 173 of  

the Code of Criminal Procedure, 1973 (hereinafter referred to  

as “the Code”) under Sections 148, 149, 326 and 302 IPC and  

Section 27 of the Arms Act against Somesh Das (A-7), Mrinal  

Das (A-4), Tapan Das (A-5), Ashim Bhattacharjee (A-2), Pradip  

Das (A-9),  Shailendra  Das (A-3),  Subal  Deb (A-10),  Gautam  

Das (A-11), Anil Das (A-1), Bikash Das (A-6), Uttam Shil (A-8),  

Ratan Sukladas (A-12) and Radha Kant Das (A-13).   

d) Vide  order  dated  12.08.2002,  the  Additional  Sessions  

Judge, Khowai, West Tripura, framed charges under Sections  

148,  149 and 302 IPC against  all  the  13 accused persons.  

Thereafter on 20.11.2002, on the request of the Special Public  

Prosecutor to alter the charges, the Additional Sessions Judge  

modified  the  charges  under  Section  302  read  with  Section  

34/120B IPC and Section 27 of the Arms Act.   

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e) During  the  recording  of  evidence,  on  16.06.2004,  

accused Ratan Sukladas (A-12) filed an application praying for  

grant of ‘pardon’ and to treat him as an ‘approver’ which was  

granted by the trial Court.  After examining all the witnesses,  

the  trial  Court,  vide  judgment  dated  19.04.2005,  acquitted  

Anil  Das  (A-1),  Ashim  Bhattacharjee  (A-2),  Shailendra  Das  

(A-3), Mrinal Das (A-4), Bikash Das (A-6), Somesh Das (A-7),  

Uttam  Shil  (A-8),  Pradip  Das  (A-9),  Subal  Deb  (A-10)  and  

Radha Kant Das (A-13)  of  the charges leveled against  them  

and convicted Tapan Das (A-5) and Gautam Das (A-11) for the  

offences  punishable  under  Section  302  of  the  IPC  and  

sentenced them to suffer rigorous imprisonment for life and to  

pay a fine of Rs.3,000/- each, in default, to further undergo  

simple imprisonment for three months.   

f) Aggrieved by the judgment of the trial Court, Tapan Das  

(A-5) and Gautam Das (A-11) filed an appeal being Criminal  

Appeal No. 47 of 2005 in the Gauhati  High Court,  Agartala  

Bench.  The State of Tripura also filed Criminal Appeal No. 90  

of 2005 against the order of acquittal of ten accused persons  

by the trial Court.    The High Court, by impugned common  

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judgment dated 29.01.2008, dismissed the appeal filed by the  

convicted accused persons (A-5 and A-11) and partly allowed  

the appeal filed by the State by setting aside the acquittal of  

four  persons,  namely,  Mrinal  Das  (A-4),  Pradip  Das  (A-9),  

Somesh  Das  (A-7)  and  Anil  Das  (A-1)  and  convicted  them  

under  Sections  302/34  IPC  and  sentenced  them  with  

imprisonment for life with a fine of Rs.3000/- each, in default,  

to  suffer  a  further  term  of  simple  imprisonment  for  three  

months.   

g) Aggrieved  by  the  common  impugned  judgment  dated  

29.01.2008 passed by the Division Bench of the High Court,  

all  the convicted accused persons filed these appeals before  

this Court by way of  special  leave.  Vide this Court’s  order  

dated  16.09.2009,  the  name  of  Pradip  Das,  appellant  No.2  

herein and (A-9) before the trial Court has been deleted from  

the array of the parties as he is not traceable.      

4) Heard Mr.  Sidharth Luthra,  learned senior  counsel  for  

the  appellants  and  Mr.  Anuj  Prakash,  learned  counsel  for  

respondent-State.

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Legal  position  with  regard  to  interference  in  Appeal  against Acquittal:

5) Since  the  High  Court  has  interfered  in  the  case  of  

acquittal, let us consider the general principles enunciated by  

this Court with regard to the same.

6) In  State of Goa vs.  Sanjay Thakran & Anr. (2007) 3  

SCC 755, this Court while considering the power of appellate  

court  to  interfere  in  an  appeal  against  acquittal,  after  

adverting  to  various  earlier  decisions  on  this  point  has  

concluded as under:-

“16…..while  exercising  the  powers  in  appeal  against  the  order of acquittal the court of appeal would not ordinarily  interfere with the order of acquittal unless the approach of  the lower court is vitiated by some manifest illegality and the  conclusion  arrived  at  would  not  be  arrived  at  by  any  reasonable  person  and,  therefore,  the  decision  is  to  be  characterised  as  perverse.  Merely  because  two  views  are  possible, the court of appeal would not take the view which  would  upset  the  judgment  delivered  by  the  court  below.  However,  the  appellate  court  has  a  power  to  review  the  evidence if it is of the view that the view arrived at by the  court  below  is  perverse  and  the  court  has  committed  a  manifest error of law and ignored the material evidence on  record.  A  duty  is  cast  upon  the  appellate  court,  in  such  circumstances,  to  reappreciate  the  evidence  to  arrive  at  a  just decision on the basis of material placed on record to find  out  whether  any  of  the  accused  is  connected  with  commission of the crime he is charged with.”

7) In  Chandrappa and Others vs.  State of  Karnataka  

(2007) 4 SCC 415, while considering the similar issue, namely,  

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appeal against acquittal and power of the appellate court to  

reappreciate, review or reconsider evidence and interfere with  

the order of acquittal, this Court, reiterated the principles laid  

down in the above decisions and further held that:-

“42…..The following general principles regarding powers of the  appellate court while dealing with an appeal against an order of  acquittal emerge:

(1)  An  appellate  court  has  full  power  to  review,  reappreciate  and  reconsider  the  evidence  upon  which  the  order of acquittal is founded.

(2)  The  Code  of  Criminal  Procedure,  1973  puts  no  limitation, restriction or condition on exercise of such power  and an appellate court on the evidence before it may reach  its own conclusion, both on questions of fact and of law.

(3)  Various  expressions,  such  as,  “substantial  and  compelling  reasons”,  “good  and  sufficient  grounds”,  “very  strong  circumstances”,  “distorted  conclusions”,  “glaring  mistakes”, etc. are not intended to curtail extensive powers  of an appellate court in an appeal against acquittal.  Such  phraseologies  are  more  in  the  nature  of  “flourishes  of  language” to emphasise the reluctance of an appellate court  to interfere with acquittal  than to curtail  the power of the  court  to  review  the  evidence  and  to  come  to  its  own  conclusion.

(4) An appellate court, however, must bear in mind that  in case of acquittal, there is double presumption in favour of  the  accused.  Firstly,  the  presumption  of  innocence  is  available to him under the fundamental principle of criminal  jurisprudence  that  every  person  shall  be  presumed  to  be  innocent unless he is proved guilty by a competent court of  law. Secondly, the accused having secured his acquittal, the  presumption  of  his  innocence  is  further  reinforced,  reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis  of  the  evidence  on record,  the  appellate  court  should  not  disturb the finding of acquittal recorded by the trial court.”

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The  same  principles  have  been  reiterated  in  several  recent  

decisions  of  this  Court  vide  State  of  Uttar  Pradesh vs.  

Jagram  and  Others,  (2009)  17  SCC  405,  Sidhartha  

Vashisht  alias  Manu  Sharma vs.  State  (NCT  of  Delhi)  

(2010) 6 SCC 1, Babu vs. State of Kerala, (2010) 9 SCC 189,  

Ganpat vs.  State of Haryana and Others,  (2010) 12 SCC  

59, Sunil Kumar Sambhudayal Gupta (Dr.) and Others vs.  

State of Maharashtra, (2010) 13 SCC 657,  State of Uttar  

Pradesh vs. Naresh and Others, (2011) 4 SCC 324, State of  

Madhya Pradesh vs.  Ramesh and Another,  (2011) 4 SCC  

786.   

8) It  is  clear  that  in  an  appeal  against  acquittal  in  the  

absence of perversity in the judgment and order, interference  

by this Court exercising its extraordinary jurisdiction, is not  

warranted.  However, if  the appeal is heard by an appellate  

court, being the final court of fact, is fully competent to re-

appreciate,  reconsider  and review the evidence and take  its  

own decision.   In  other  words,  law does  not  prescribe  any  

limitation, restriction or condition on exercise of such power  

and the appellate court is free to arrive at its own conclusion  

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keeping in  mind that  acquittal  provides  for  presumption  in  

favour  of  the  accused.   The  presumption  of  innocence  is  

available  to  the  person and in criminal  jurisprudence every  

person is presumed to be innocent unless he is proved guilty  

by the competent court.  If two reasonable views are possible  

on the  basis  of  the  evidence  on record,  the  appellate  court  

should  not  disturb  the  findings  of  acquittal.    There  is  no  

limitation  on  the  part  of  the  appellate  court  to  review  the  

evidence upon which the order of  acquittal  is  found and to  

come  to  its  own conclusion.   The  appellate  court  can  also  

review the conclusion arrived at by the trial Court with respect  

to both facts and law.  While dealing with the appeal against  

acquittal preferred by the State, it is the duty of the appellate  

court to marshal  the entire evidence on record and only by  

giving cogent and adequate reasons set aside the judgment of  

acquittal.  An order of acquittal is to be interfered with only  

when there are “compelling and substantial reasons” for doing  

so.  If the order is “clearly unreasonable”, it is a compelling  

reason for interference.  When the trial Court has ignored the  

evidence  or  misread  the  material  evidence  or  has  ignored  

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material  documents like dying declaration/report  of  ballistic  

experts etc.,  the appellate court is competent to reverse the  

decision of the trial Court depending on the materials placed.  

9) With the above principles, let us analyse the reasonings  

and ultimate conclusion of the High Court in interfering with  

the order of acquittal and also the confirmation of sentence on  

the two convicted appellants.   

Evidentiary value of Approver/Accomplice:

10)  Before  considering  the  impugned  judgment  on  merits,  

inasmuch as the High Court heavily relied on the evidence of  

the  “approver”,  let  us  find  out  the  legal  position  about  the  

evidentiary  value  of  “approver”  and its  acceptability  with  or  

without corroboration.   

11) Though  a  conviction  is  not  illegal  merely  because  it  

proceeds on the uncorroborated testimony of an approver, yet  

the universal practice is not to convict upon the testimony of  

an accomplice unless it is corroborated in material particulars.  

The evidence of an approver does not differ from the evidence  

of  any other witness save in one particular  aspect,  namely,  

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that  the  evidence  of  an accomplice  is  regarded  ab  initio as  

open to grave suspicion.  

12) If  the  suspicion  which  attaches  to  the  evidence  of  an  

accomplice be not removed, that evidence should not be acted  

upon unless corroborated in some material particulars; but if  

the  suspicion  attaching  to  the  accomplice’s  evidence  be  

removed, then that evidence may be acted upon even though  

uncorroborated,  and  the  guilt  of  the  accused  may  be  

established upon the evidence alone.  

13) In  order  to  understand  the  correct  meaning  and  

application of this term, it is desirable to mention Section 133  

of the Indian Evidence Act, 1872 along with Illustration (b) to  

Section 114 which read as under:-

"133. Accomplice  .- An  accomplice  shall  be  a  competent  witness against an accused person; and a conviction is not  illegal merely because it proceeds upon the uncorroborated  testimony of an accomplice."

Illustration (b) to Section 114

"(b) The Court may presume that an accomplice is unworthy  of credit, unless he is corroborated in material particulars."

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Dealing  with  the  scope  and  ambit  of  the  above-noted  two  

provisions,  this  Court,  in  Bhiva  Doulu  Patil v. State  of  

Maharahshtra, AIR 1963 SC 599=(1963) 3 SCR 830 has held  

that both the sections are part of one subject and have to be  

considered together. It has further been held:-

"The combined effect of Sections 133 and Illustration (b) to  Section 114, may be stated as follows:  

According  to  the  former,  which  is  a  Rule  of  law,  an  accomplice is competent to give evidence and according to  the latter,  which is  a Rule of  practice  it  is  almost  always  unsafe  to  convict  upon  his  testimony  alone.  Therefore,  though the conviction of an accused on the testimony of an  accomplice cannot be said to be illegal yet the courts will, as  a  matter  of  practice,  not  accept  the evidence  of  such  a  witness without corroboration in material particulars."

14) The very same principle was reiterated in Mohd. Husain  

Umar Kochra etc. v. K. S. Dalipsinghji and Another etc.,   

(1969) 3 SCC 429 and it was held :--

"….  The  combined  effect  of  Sections  133  and  114,  Illustration  (b)  is  that  though  a  conviction  based  upon  accomplice evidence is legal, the Court will not accept such  evidence  unless  it  is  corroborated  in  material  particulars.  The corroboration must connect the accused with the crime.  It may be direct or circumstantial.  It is not necessary that  the  corroboration  should confirm all  the  circumstances  of  the crime. It is sufficient if the corroboration is in material  particulars. The corroboration must be from an independent  source. One accomplice cannot corroborate another."

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15) While  considering  the  validity  of  approver’s  testimony  

and  tests  of  credibility,  this  Court,  in  Sarwan  Singh  S/o  

Rattan Singh vs. State of Punjab  AIR 1957 SC 637 has held  

as under:-

“7…..An  accomplice  is  undoubtedly  a  competent  witness  under the Indian Evidence Act.  There can be, however, no  doubt  that  the  very  fact  that  he  has  participated  in  the  commission of the offence introduces a serious stain in his  evidence and Courts are naturally reluctant to act on such  tainted  evidence  unless  it  is  corroborated  in  material  particulars by other independent evidence.  It would not be  right to expect that such independent corroboration should  cover  the  whole  of  the  prosecution  story  or  even  all  the  material  particulars.   If  such  a  view  is  adopted  it  would  render  the  evidence of  the accomplice  wholly  superfluous.  On the other hand, it would not be safe to act upon such  evidence  merely  because  it  is  corroborated  in  minor  particulars  or  incidental  details  because,  in  such  a  case,  corroboration does not afford the necessary assurance that  the main story disclosed by the approver can be reasonably  and safely accepted as true.  But it must never be forgotten  that  before  the court  reaches the stage of  considering the  question of corroboration and its adequacy or otherwise, the  first  initial  and  essential  question  to  consider  is  whether  even as an accomplice the approver is a reliable witness.  If  the  answer  to  this  question  is  against  the  approver  then  there is an end of the matter, and no question as to whether  his evidence is corroborated or not falls to be considered.  In  other words, the appreciation of an approver’s evidence has  to satisfy a double test.  His evidence must show that he is a  reliable witness and that is a test which is common to all  witnesses.  If this test is satisfied the second test which still  remains to be applied is that the approver’s evidence must  receive sufficient corroboration.  This test is special to the  cases of weak or tainted evidence like that of the approver…..

8…..Every  person  who  is  a  competent  witness  is  not  a  reliable witness and the test of reliability has to be satisfied  by  an  approver  all  the  more  before  the  question  of  

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corroboration  of  his  evidence  is  considered  by  criminal  courts”    

16) Further,  in  Ravinder  Singh v. State  of  Haryana,   

(1975) 3 SCC 742, this Court, while considering the approver’s  

testimony  within  the  meaning  of  Section  133  of  the  

Indian Evidence Act, 1872  has observed :--

"12.  An Approver is a most unworthy friend, if at all, and he,  having  bargained  for  his  immunity,  must  prove  his  worthiness  for  credibility  in  Court.  This  test  is  fulfilled,  firstly, if the story he relates involves him in the crime and  appears intrinsically to be a natural and probable catalogue  of events that had taken place. Secondly, once that hurdle is  crossed, the story given by an approver so far as the accused  on trial is concerned, must implicate him in such a manner  as to give  rise  to  a conclusion of  guilt  beyond reasonable  doubt.  In  a  rare  case,  taking  into  consideration  all  the  factors, circumstances and situation governing a particular  case,  conviction  based  on  the  uncorroborated evidence of  an approver  confidently held to be true and reliable by the  Court  may  be  permissible.   Ordinarily,  however,  an approver’s  statement has to be corroborated in material  particulars bridging closely the distance between the crime  and the criminal. Certain clinching features of involvement  disclosed  by  an approver  appertaining  directly  to  an  accused, if reliable, by the touchstone of other independent  credible evidence,  would  give  the  needed  assurance  for  acceptance of his testimony on which a conviction may be  based."

17) In Abdul Sattar v. Union Territory, Chandigarh, 1985  

(Supp) SCC 599 where the prosecution had sought to prove its  

case by relying upon the evidence of the approver, it was held  

that the  approver is a competent witness but the position in  

law is fairly well settled that on the uncorroborated testimony  

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of  the approver,  it  would  be  risky  to  base  the  conviction,  

particularly, in respect of a serious charge like murder. Once  

the evidence of  the approver is  found to be not reliable,  the  

worth  of  his  evidence  is  lost  and  such  evidence,  even  by  

seeking  corroboration,  cannot  be  made  the  foundation  of  a  

conviction.

18) The above said ratio has been reaffirmed and reiterated  

by this Court in  Suresh Chandra Bahri v.  State of Bihar   

(1995  Supp  (1)  SCC  80);  Ramprasad  v.  State  of  

Maharashtra, :  AIR 1999 SC 1969 : (1999 Cri LJ 2889) and  

Narayan  Chetanram  Chaudhary  v.  State  of  

Maharashtra, : (2000) 8 SCC 457.

19) In  Narayan  Chetanram  Chaudhary  (supra), it  was  

further  held  that  for  corroborative evidence,  the  court  must  

look at the broad spectrum of the approver's version and then  

find  out  whether  there  is  other evidence to  corroborate  and  

lend assurance to that version. The nature and extent of such  

corroboration may depend upon the facts of different cases.  

Corroboration need not be in the form of ocular testimony of  

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witnesses  and  may  even  be  in  the  form  of  

circumstantial evidence.  Corroborative evidence must  be  

independent and not vague or unreliable.  

20) Similar question again came up for consideration before  

this Court in  K.  Hashim v State of Tamil Nadu, (2005) 1  

SCC 237 :  2005 Cri LJ 143 and Sitaram Sao @ Mungeri v  

State of Jharkhand, (2007) 12 SCC 630 wherein this Court  

has held that:   

“26. Section 133 of the Evidence Act expressly provides that  an accomplice is a competent witness and the conviction is  not illegal merely because it proceeds on an uncorroborated  testimony  of  an  accomplice.  In  other  words,  this  section  renders admissible such uncorroborated testimony. But this  Section has to be read along with Section 114, illustration  (b). The latter section empowers the Court to presume the  existence of certain facts and the illustration elucidates what  the  Court  may  presume  and  make  clear  by  means  of  examples  as to what  facts the Court  shall  have regard in  considering  whether  or  not  maxims  illustrated  apply  to  a  given  case.  Illustration  (b)  in  express  terms  says  that  accomplice is unworthy of credit unless he is corroborated in  material  particulars.  The Statute permits the conviction of  an accused on the basis of uncorroborated testimony of an  accomplice but the rule of prudence embodied in illustration  (b)  to  Section  114  of  the  Evidence  Act  strikes  a  note  of  warning cautioning the Court that an accomplice does not  generally  deserve  to  be  believed  unless  corroborated  in  material  particulars.  In  other  words,  the  rule  is  that  the  necessity  of  corroboration  is  a  matter  of  prudence  except  when it is safe to dispense with such corroboration must be  clearly present in the mind of the Judge”

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21) In  Sheshanna  Bhumanna  Yadav vs.  State  of  

Maharashtra (1970)  2  SCC  122,  the  test  of  reliability  of  

approver’s  evidence  and  rule  as  to  corroboration  was  

discussed.   The  following  discussion  and  conclusion  are  

relevant which read as under:-

“12.  The  law  with  regard  to  appreciation  of  approver's  evidence  is  based  on the  effect  of  Sections  133  and 114,  illustration  (b)  of  the  Evidence  Act,  namely,  that  an  accomplice is competent to depose but as a rule of caution it  will  be  unsafe  to  convict  upon  his  testimony  alone.  The  warning  of  the  danger  of  convicting  on  uncorroborated  evidence is therefore given when the evidence is that of an  accomplice. The primary meaning of accomplice is any party  to the crime charged and some one who aids and abets the  commission of crime. The nature of corroboration is that it is  confirmatory evidence and it may consist of the evidence of  second witness or of circumstances like the conduct of the  person  against  whom  it  is  required.  Corroboration  must  connect  or  tend  to  connect  the  accused  with  the  crime.  When  it  is  said  that  the  corroborative  evidence  must  implicate the accused in material particulars it means that it  is not enough that a piece of evidence tends to confirm the  truth  of  a  part  of  the  testimony  to  be  corroborated.  That  evidence  must  confirm  that  part  of  the  testimony  which  suggests that the crime was committed by the accused. If a  witness says that the accused and he stole the sheep and he  put the skins in a certain place, the discovery of the skins in  that place would not corroborate the evidence of the witness  as against the accused. But if the skins were found in the  accused's  house,  this  would corroborate  because  it  would  tend to confirm the statement that the accused had some  hand in the theft.

13. This Court stated the law of corroboration of accomplice  evidence in several decisions. One of the earlier decision is  Sarwan  Singh v.  State  of  Punjab, 1957 SCR 953 and the  recent decision is Lachi Ram v. State of Punjab, (1967) 1 SCR  243. In Sarwan Singh case this Court laid down that before  the court would look into the corroborative evidence it was  necessary to  find out  whether  the approver  or  accomplice  

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was a reliable witness. This Court in  Lachi Ram case said  that the first  test of  reliability  of approver and accomplice  evidence  was  for  the  court  to  be  satisfied  that  there  was  nothing  inherently  impossible  in  evidence.  After  that  conclusion  is  reached  as  to  reliability  corroboration  is  required.  The  rule  as  to  corroboration  is  based  on  the  reasoning  that  there  must  be  sufficient  corroborative  evidence in material particulars to connect the accused with  the crime.”

22) In Dagdu and Ors. vs. State of Maharashtra, (1977) 3  

SCC  68,  the  scope  of  Section  133  and  Illustration  (b)  to  

Section 114 of the Indian Evidence Act, 1872 and nature of  

rule of corroboration of accomplice evidence was explained by  

a three-Judge Bench of this Court in the following manner:  

“24. In Bhiiboni Sahu v. King the Privy Council after noticing  Section  133  and  Illustration  (b)  to  Section  114  of  the  Evidence Act observed that whilst it is not illegal to act on  the uncorroborated evidence of an accomplice, it is a rule of  prudence so universally followed as to amount almost to a  rule  of  law that  it  is  unsafe  to  act  on the evidence of  an  accomplice unless it is corroborated in material respects so  as to implicate the accused; and further that the evidence of  one accomplice cannot be used to corroborate the evidence  of another accomplice. The rule of prudence was based on  the  interpretation  of  the  phrase  “corroborated  in  material  particulars” in Illustration (b). Delivering the judgment of the  Judicial Committee, Sir John Beaumont observed that the  danger of acting on accomplice evidence is not merely that  the  accomplice  is  on  his  own  admission  a  man  of  bad  character  who  took part  in  the  offence  and afterwards  to  save himself  betrayed his  former associates,  and who has  placed himself in a position in which he can hardly fail to  have  a  strong  bias  in  favour  of  the  prosecution;  the  real  danger  is  that  he  is  telling  a  story  which  in  its  general  outline is true, and it is easy for him to work into the story  matter which is untrue. He may implicate ten people in an  offence and the story may be true in all its details as to eight  of them but untrue as to the other two whose names may  

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have  been  introduced  because  they  are  enemies  of  the  approver. The only real safeguard therefore against the risk  of condemning the innocent with the guilty lies in insisting  on independent evidence which in some measure implicates  each accused.

25. This Court has in a series of cases expressed the same  view as regards accomplice evidence. (See  State of Bihar v.  Basawan Singh; Hari Charan Kurmi v. State of Bihar; Haroon  Haji Abdulla v.  State of Maharashtra; and Ravinder Singh v.  State  of  Haryana.)  In  Haricharan,  Gajendragadkar,  C.J.,  speaking for a five-Judge Bench observed that the testimony  of an accomplice is evidence under Section 3 of the Evidence  Act and has to be dealt with as such. The evidence is of a  tainted  character  and  as  such  is  very  weak;  but,  nevertheless, it is evidence and may be acted upon, subject  to the requirement which has now become virtually a part of  the law that it is corroborated in material particulars.”

23) In  Rampal Pithwa Rahidas and Others vs.  State of  

Maharashtra, 1994 Supp (2) SCC 73, while considering the  

very  same  provisions,  this  Court  has  held  that  approver’s  

evidence  must  be  corroborated  in  material  particulars  by  

direct or circumstantial evidence.  This Court further held that  

while considering credibility of the approver and weight to be  

attached  to  his  statement,  the  statement  made  in  bail  

application of approver can be looked into by the court.    

24) It is clear that once the evidence of the approver is held  

to  be  trustworthy,  it  must  be  shown  that  the  story  given  

by him so far as an accused is concerned, must implicate him  

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in such manner as to give rise to a conclusion of guilt beyond  

reasonable doubt. Insistence upon corroboration is based on  

the  rule  of  caution  and  is  not  merely  a  rule  of  law.  

Corroboration need not be in the form of ocular testimony of  

witnesses  and  may  even  be  in  the  form  of  circumstantial  

evidence.

25) Keeping the legal principles enunciated by this Court in  

respect  of  interference  by  the  appellate  court  in  case  of  

acquittal  by  the  trial  Court  and  evidentiary  value  of  

“approver”/”accomplice”,  let  us  discuss  the  oral  and  

documentary  evidence  led  in  by  the  prosecution  and  the  

defence.

Approver’s evidence (PW-6)

26) One Ratan Sukladas S/o Prafullya Sukladas, originally  

charged  as  accused  No.  12,  after  tendering  pardon  was  

examined  as  PW-6  on  the  side  of  the  prosecution.   Mr.  

Sidharth  Luthra,  learned  senior  counsel  for  the  appellants  

submitted  that  inasmuch as  PW-6 waited  for  four  years  to  

change  his  mind  and  sought  pardon  for  his  action,  his  

statement is not reliable and the courts below ought to have  

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rejected  his  testimony.   In  order  to  appreciate  the  said  

contention, it is useful to refer the relevant provisions of the  

Code relating to tender of pardon and power to direct tender of  

pardon to approver/accomplice.  

27) Sections 306 and 307 of the Code read as under:  

“306. Tender of pardon to accomplice.--(1) With a view to  obtaining the evidence of any person supposed to have been  directly or indirectly concerned in or privy to an offence to  which this section applies, the Chief Judicial Magistrate or a  Metropolitan Magistrate at any stage of the investigation or  inquiry into, or the trial of, the offence, and the Magistrate of  the first  class inquiring into or  trying the offence,  at  any,  stage of the inquiry or trial, may tender a pardon to such  person on condition of his making a full and true disclosure  of  the  whole  of  the  circumstances  within  his  knowledge  relative to the offence and to every other person concerned,  whether as principal or abettor, in the commission thereof.   (2) XXXXX   (3)  Every  Magistrate  who  tenders  a  pardon  under  sub- section (1) shall record-   (a) His reasons for so doing;   (b)  Whether  the  tender  was  or  was  not  accepted  by  the  person to whom it was made,   and shall, on application made by the accused, furnish him  with a copy of such record free of cost.   (4) Every person accepting a tender of pardon made under  sub-section (1)-   (a)  Shall  be  examined  as  a  witness  in  the  court  of  the  Magistrate  taking  cognizance  of  the  offence  and  in  the  subsequent trial, if any;   (b) Shall, unless he is already on bail, be detained in custody  until the termination of the trial.

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 (5) Where a person has accepted a tender of pardon made  under sub-section (1) and has, been examined under sub- section (4), the Magistrate taking cognizance of the offence  shall, without making any further inquiry in the case.   (a) Commit it for trial-   (i) To the Court of Session if the offence is triable exclusively  by that court or if  the Magistrate taking cognizance is the  Chief Judicial Magistrate;   (ii) To a court of Special Judge appointed under the Criminal  Law  Amendment  Act  1952  (46  of  1952),  if  the  offence  is  triable exclusively by that court;   (b)  In  any  other  case,  make  over  the  case  to  the  Chief  Judicial Magistrate who shall try the case himself.”

“307. Power to direct tender of pardon.--At any time after  commitment of a case but before Judgment is passed, the  court to which the commitment is made may, with a view, to  obtaining at the trial the evidence of any person supposed to  have been directly or indirectly concerned in, or privy to, any  such offence, tender a pardon on the same condition to such  person.”

28) The principle of tendering pardon to an accomplice is to  

unravel the truth in a grave offence so that guilt of the other  

accused persons concerned in commission of crime could be  

brought  home.  The  object  of  Section  306  of  the  Code  of  

Criminal  Procedure,  1973  (in  short  “the  Code”)  is  to  allow  

pardon in cases where heinous offence is alleged to have been  

committed  by  several  persons  so  that  with  the  aid  of  the  

evidence  of  the  person granted  pardon,  the  offence  may be  

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brought home to the rest.  This Section empowers the Chief  

Judicial Magistrate or a Metropolitan Magistrate to tender a  

pardon  to  a  person  supposed  to  have  been  directly  or  

indirectly  concerned  in  or  privy  to  an offence  to  which  the  

section applies, at any stage of the investigation or inquiry or  

trial of the offence on condition of his making a full and true  

disclosure  of  the  whole  of  the  circumstances  within  his  

knowledge relative  to the offence.  Under Section 306 of  the  

Code, the Magistrate of the First Class is also empowered to  

tender pardon to an accomplice at any stage of inquiry or trial  

but not at the stage of investigation on condition of his making  

full and true disclosure of the entire circumstances within his  

knowledge relative to the crime. Section 307 of the Code vests  

the Court to which the commitment is made, with power to  

tender  a  pardon  to  an accomplice.  An  accomplice  who has  

been granted pardon under Section 306 or 307 of the Code  

gets  protection  from  prosecution.  When  he  is  called  as  a  

witness  for  the  prosecution,  he  must  comply  with  the  

condition of making a full and true disclosure of the whole of  

the  circumstances  within  his  knowledge  concerning  the  

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offence  and  to  every  other  person  concerned,  whether  as  

principal  or  abettor,  in  the  commission  thereof  and  if  he  

suppresses  anything  material  and  essential  within  his  

knowledge  concerning  the  commission  of  crime  or  fails  or  

refuses to comply with the condition on which the tender was  

made  and  the  Public  Prosecutor  gives  his  certificate  under  

Section 308 of the Code to that effect, the protection given to  

him can be lifted.

29) Section 306 (4) makes it clear that the person accepting a  

tender of pardon should be examined as a witness first in the  

Court of Magistrate and subsequently in the trial Court.  Once  

an accused is granted pardon under Section 306, he ceases to  

be  an  accused  and  becomes  witness  for  the  prosecution.  

Regarding the delay in tendering pardon, it is not in dispute  

that the trial commenced on 11.03.2003 with the examination  

of prosecution witnesses.  The approver – PW-6, submitted his  

application to become an approver on 16.06.2004 well before  

the judgment which was delivered on 19.04.2005.  We have  

already quoted Section 307 of  the Code which denotes that  

pardon can be tendered at any time after commitment of a  

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case but before the judgment is pronounced.  In view of the  

same,  inasmuch  as  the  approver  submitted  his  application  

well  before the judgment was delivered, i.e.,  on 19.04.2005,  

the contention regarding delay on the part of PW-6 is liable to  

be rejected.  

30) It is also not in dispute that initially, PW-6 was one of the  

13 accused persons charged with the offence of murder and in  

the array of accused, he was shown as (A-12).  Accordingly,  

the  prosecution  is  justified  in  taking  the  stand  that  the  

approver  (PW-6)  was  directly  or  indirectly  concerned  in  or  

privy to the offence of murder.  In view of the same and in the  

light  of  the  language  used in  Section  307 of  the  Code,  the  

Courts below are right in entertaining the evidence of PW-6 as  

approver.  As regards the condition prescribed in Section 306  

of  the  Code  that  the  approver  must  make  a  full  and  true  

disclosure of the whole of the circumstances, let us analyze his  

statement  whether  he  complied  with  the  above  said  

requirement.   

31) In his examination-in-chief, he had clearly stated that he  

was one of the accused in the case and during investigation he  

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was arrested by the police.  On completion of investigation, the  

investigating agency submitted charge-sheet against him along  

with others for trial.  In categorical terms, he asserted that he  

was aware of  the whole incident  which led to the killing of  

Tapan  Chakraborty  and  also  asserted  that  he  was  also  

connected with and involved in his murder along with others.  

He highlighted that on 21.08.2000, there was a public meeting  

organized  by  CPI  (M)  party  at  Santinagar.   The  deceased,  

Tapan Chakraborty and other party leaders attended the said  

meeting.  In the year 2000, there was a student agitation at  

Ratia Ferry Ghat against kidnapping of three students and one  

labourer by the extremists.  On this issue, the students had  

blocked the road.  The deceased, Tapan Chakraborty,  being  

the local leader of the CPI (M) party, resisted the students in  

making agitation and blocking up the road.  For that matter,  

PW-6 along with other  accused developed a grudge in their  

minds  to  give  Tapan  Chakraborty  a  good  lesson.   On  

30.08.2000, at about 7/8 p.m., a meeting was convened in the  

house  of  the  accused  Tapan  Das  (A-5).   All  the  accused  

persons  including  PW-6  were  present  in  the  said  meeting  

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wherein it was decided to eliminate Tapan Chakraborty as he  

stood against the students’ movement.  He further highlighted  

that two days back, prior to holding of meeting on 30.08.2000,  

they saw posters hanging on the walls that a meeting of CPI  

(M) would be held at Santinagar on 31.08.2000 at 3:00 p.m  

where Ramakanta Paul (PW-10) and Tapan Chakraborty would  

remain present.  To materialize the plan chalked out in the  

meeting held on 30.08.2000, 13 persons including PW-6 had  

spread over in different groups in different places to eliminate  

Tapan Chakraborty.   Uttam Shil  (A-8)  was  deputed  on  the  

other  side  of  the  river  to  let  them  informed  when  Tapan  

Chakraborty  would  be  proceeding  towards  Bagan  Bazar  on  

conclusion  of  meeting.   Radha  Kant  Das  (A-13),  Ashim  

Bhattacharjee  (A-2),  Bikash  Das  (A-6),  Mrinal  Das  (A-4),  

Shailendra Das (A-3) and PW-6 were waiting at Bagan Bazar.  

Another  group  of  persons  consisting  of  Tapan  Das  (A-5),  

Gautam Das (A-11), Somesh Das (A-7), Pradip Das (A-9) were  

waiting in the house of Anil Das (A-1).  All were keeping watch  

and observing the situation till 4 p.m.  Around 6 p.m., they  

were  informed  by  Anil  Das  (A-1)  that  the  meeting  at  

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Santinagar  had  been  over  and  the  participants  of  the  said  

meeting had started for the Ferry Ghat to cross the river.  The  

persons assembled in the house of Anil Das (A-1) started for  

Ferry Ghat.  On seeing them, another group including PW-6  

waiting at Bagan Bazar also followed them.  All the aforesaid  

13  persons  reached  Ferry  Ghat  around  6.15  p.m.  After  

reaching  there,  they  found  the  boat  carrying  Tapan  

Chakraborty, Ramakanta Paul PW-10 and 9/10 other persons  

in the middle of the river.  As soon as Tapan Chakraborty and  

others got down from the boat, one of the accused shouted to  

attack him.  While Tapan Chakraborty was washing his feet in  

the  river  water,  suddenly,  PW-6  caught  hold  of  him  and  

dragged him down on the side  of  the  river.   He fell  on the  

ground with his back side up.  At that point of time, Tapan  

Das (A-5) and Gautam Das (A-11) fired two rounds of bullet  

from their pistols on Tapan Chakraborty.  Simultaneously, a  

bomb  had  exploded  on  the  other  side  of  the  river.   The  

witnesses who were waiting in the passenger shed to escort  

the victim rushed to the place of occurrence.  On seeing them,  

all  the  assailants  fled  towards  south-east  direction.   PW-6  

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crossed the river along with others taking the route of Ratia to  

conceal themselves.  They were advised by Tapan Das (A-5)  

and Gautam Das (A-11) to keep themselves confined in their  

respective houses.  On the following day, PW-6 came to know  

from local news broadcasted by the All India Radio that Tapan  

Chakraborty died following the gun shots.  

32) Regarding his change of mind, PW-6 explained that he  

became  perplexed  by  the  death  of  Tapan  Chakraborty.  He  

further  explained  that  out  of  repentance,  he  once  made an  

attempt to commit suicide by hanging himself at his residence  

in the middle of the month of March, 2004.  Thereafter, he  

decided to divulge the whole incident leading to the killing of  

Tapan Chakraborty before the Court.  He also asserted that he  

had decided to disclose the whole incident voluntarily on the  

advise  of  the  members  of  his  family.   He  identified  all  the  

accused persons in the Court by name and face.  

33) In  cross-examination,  PW-6  deposed  that  the  police  

arrested him in connection with this case one day after the  

occurrence.   He  was  in  police  custody  for  eight  days  and,  

thereafter, on expiry of police remand, he was granted bail.  He  

3

asserted that during his stay in police custody,  he was not  

interrogated by police.  About his change of mind, in cross-

examination,  he explained that  since 31.08.2000 till  mid of  

March,  2004,  he  had  been  running  amok.   During  the  

aforesaid intervening period,  he did not meet any people  to  

express his mental agony.  He also asserted that he lost his  

mental peace as the murder of Tapan Chakraborty was taken  

place before his own eyes and he was also directly involved in  

his killing.  He denied that he deposed falsely.  He also denied  

that he was provoked by the CPI (M) party that if he turns to  

be an approver, he would be given a suitable job.  

34) A reading of the entire evidence of PW-6 makes it clear  

that the reason for change of his mind for tendering pardon is  

acceptable  and  in  tune  with  the  conditions  prescribed  in  

Sections 306 and 307 of the Code.  The trial Judge, who had  

the liberty of noting his appearance and recorded his evidence,  

believed his version which was rightly accepted by the High  

Court.  On going through his entire evidence, the conditions  

stated in Sections 306 and 307 of the Code are fully complied  

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with  and  we  accept  his  statement  and  concur  with  the  

decision arrived at by the courts below.

Corroborative  evidence  with  regard  to  the  statement  of  PW-6:   

35) In the FIR, the following persons have been named as  

accused relating  to  the  occurrence,  namely,  Anil  Das (A-1),  

Ashim Bhattacharjee (A-2), Shailendra Das (A-3), Mrinal Das  

(A-4), Tapan Das (A-5), Bikash Das (A-6), Somesh Das (A-7),  

Uttam Shil (A-8), Pradip Das (A-9), Subal Deb (A-10), Gautam  

Das  (A-11),  Ratan  Sukladas  (A-12)  (turned  approver)  and  

Radha Kant Das (A-13).

36) Ratan  Sukladas  who turned  as  an ‘approver’  and was  

examined  as  PW-6,  named  all  the  13  accused  (including  

himself).   He  mentioned  the  following  persons  as  accused,  

namely, Anil Das (A-1), Ashim Bhattacharjee (A-2), Shailendra  

Das (A-3), Mrinal Das (A-4), Tapan Das (A-5), Bikash Das (A-

6),  Somesh  Das  (A-7),  Uttam  Shil  (A-8),  Pradip  Das  (A-9),  

Subal Deb (A-10), Gautam Das (A-11), and Radha Kant Das  

(A-13).

37) Among  the  13  accused,  we  are  concerned  only  with  

Tapan Das (A-5) and Gautam Das (A-11) in these appeals, who  

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were  convicted  by  the  trial  Court  and  their  conviction  was  

confirmed by the High Court and  Somesh Das (A-7), Mrinal  

Das (A-4) and Anil Das (A-1), who were acquitted by the trial  

Court  and  convicted  by  the  High  Court.   Except  the  

abovementioned 5 accused persons, we are not concerned with  

others.   Tapan Das (A-5) was identified by Babul Dey (PW-1),  

Nehar Ranjan Deb (PW-4),  Bidhu Urang (PW-7)  and Pranab  

Chakraborty  (PW-8).   Somesh  Das  (A-7)  was  identified  by  

Babul Dey (PW-1) and Bidhu Urang (PW-7).  Mrinal Das (A-4)  

was identified by Babul  Dey (PW-1)  and Nehar Ranjan Deb  

(PW-4).  Anil Das (A-1) was identified by Nehar Ranjan Deb  

(PW-4) and Pranab Chakraborty (PW-8).  Gautam Das (A-11)  

was identified by Babul Dey (PW-1), Nehar Ranjan Deb (PW-4),  

Bidhu Urang (PW-7) and Pranab Chakraborty (PW-8).  Though  

Pradip Das    (A-9) was identified by Babul Dey (PW-1), Nehar  

Ranjan  Deb  (PW-4),  Bidhu  Urang  (PW-7)  and  Pranab  

Chakraborty (PW-8), inasmuch as his name has been deleted  

from the array of the appellants vide this Court’s order dated  

16.09.2009,  there  is  no  need to  consider  his  case  in  these  

appeals.

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38) Now  let  us  analyse  the  witnesses  relied  on  by  the  

prosecution.   

Eye-witnesses in the boat

39) Babul Dey -  PW-1 identified Somesh Das (A-7),  Mrinal  

Das  (A-4),  Tapan  Das  (A-5),  Gautam  Das  (A-11),  Ashim  

Bhattacharjee (A-2),  Subal Deb (A-10),  Shailendra Das (A-3)  

and Pradip Das (A-9).  In his evidence, he deposed that Tapan  

Chakraborty, the deceased, was known to him.  He admitted  

that he belongs to DYFI, which is the youth wing of CPI(M)  

party.   The  deceased  was  the  Vice-Chairman  of  Kalyanpur  

Block and was also the Secretary of DYFI.  He explained that a  

meeting  was  held  at  Durgapur  on  31.08.2000  which  was  

started at 3 p.m. and completed at 5 p.m.   He along with  

Tapan  Chakraborty  attended  the  said  meeting.  After  

completion of the meeting, all the participants including him  

left for Kalyanpur by crossing the river by a boat.  At around  

06:00 p.m., after crossing the river, when Tapan Chakraborty  

was  washing  his  feet  in  the  river  water,  some  miscreants  

pushed  him  and  they  were  also  using  abusive  language  

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towards him.  They opened gun fire in the air.  On seeing this,  

he along with others fled to the retiring shed nearby the river  

where some members of the party were waiting for them.  He  

also noticed that the assailants were running towards north  

and they were 15/16 in number.  When he along with others  

returned  to  the  place  of  occurrence,  they  found  Tapan  

Chakraborty lying on the ground in injured condition.  They  

took Tapan Chakraborty  to  Kalyanpur  Hospital  in  a  mobile  

police van.  On the advise of the doctors, Tapan Chakraborty  

was shifted to G.B. Hospital, Agartala.  He admitted that he  

did not go to G.B. Hospital.  However, he came to learn that on  

the way to G.B. Hospital,  Tapan Chakraborty succumbed to  

his  injuries.   He  along  with  Ramakanta  Paul  (PW-10)  and  

others then went to their Party office and discussed the matter  

and decided to lodge a complaint to the police.  Accordingly,  

their Secretary, Sunil Deb scribed an ejahar as per the version  

of PW-1 and after writing the same, he read over the same to  

him and after satisfying that it was written as per his version,  

he put his signature therein.  In the witness box, he identified  

his signature which was marked as Ex.1.  He also informed  

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the  Court  that  the  accused persons were  the  supporters  of  

Congress (I) party.  He also clarified that two of the miscreants  

were supporters of Amara Bengali Party.

(a) Babul Dey was examined as PW-1.  In his evidence, he  

narrated  the  entire  events  commencing  from  conspiracy  

ending with gunshot on the deceased - Tapan Chakraborty.  

Though  it  was  pointed  out  that  he  had  not  stated  all  the  

abovementioned details in the complaint, on going through the  

same,  we  are  satisfied  that  all  relevant  details  have  been  

stated in the complaint and the omission to mention is only  

negligible.  Likewise, it was commended by the counsel for the  

appellants that though there were some police personnel  in  

the police mobile van, PW-1 did not disclose the incident to  

any of those police officials traveling in the said vehicle.  For  

this,  PW-1  has  explained  that  they  took  the  injured  to  

Kalyanpur Hospital first and later on, in association with his  

party supporters, he lodged a complaint.  In such a situation,  

it is but natural that the person who received gunshot injury  

has to be admitted in the hospital and only thereafter anybody  

could think of the next step including making a complaint to  

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the police.  We are satisfied that there is no infirmity in the  

conduct  of  PW-1  in  not  conveying  anything  to  the  police  

personnel in the mobile van and even his interaction with his  

party  colleagues.   PW-1  has  also  admitted  that  Tapan  

Chakraborty was the Secretary of DYFI, because of which it  

was  argued  that  due  to  political  rivalry,  he  had  falsely  

implicated  the  accused  persons.   In  view  of  the  above  

discussion,  we  are  not  impressed  upon such objection  and  

reject the same.  

b) The other eye-witness is Nitai Das (PW-3), who was in the  

boat.  It was he, who identified Ratan Sukladas (A-12), Radha  

Kant  Das  (A-13)  and  Bikash  Das  (A-6)  as  the  members  of  

attacking group.  He also admitted that the deceased Tapan  

Chakraborty was known to him.  Like PW-1, he also explained  

that the meeting was held at Santinagar between 3:00 p.m. to  

5:45  p.m.   He  along  with  Tapan  Chakraborty  and  others  

reached  Santinagar  through Ferry  Ghat.   They  crossed  the  

river by boat and got down on the other side of the river and in  

that  process,  according to him,  he heard sound of  gunshot  

and simultaneously a bomb was hurled from the other side of  

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the river.  Due to fear, they fled at a distance of 10 cubics from  

the place of occurrence and some people who were waiting in  

the passenger shed rushed to the spot.  When he along with  

others returned to the place of occurrence, he found Tapan  

Chakbraborty lying on the ground in injured condition.  Apart  

from three persons mentioned above, he also stated that about  

10/12 persons attacked Tapan Chakraborty.  The miscreants,  

after commission of offence, fled towards south-east direction.  

Thereafter,  they took him to Kalyanpur Hospital  in a police  

van.  He was examined by the I.O. on the same night, that is,  

at about 9.00 p.m., to whom also he disclosed the names of  

the  above  said accused persons.   There  is  no contradiction  

with regard to the identification of the said three assailants.  

Though  counsel  for  the  appellants  has  pointed  out  certain  

omissions, on going through the same, we are satisfied that  

these omissions were not at all material and the High Court  

has rightly relied on and accepted his evidence.  

c) Apart from eye-witnesses PW-1 and PW-3, another eye-

witness Benu Ranjan Dhupi (PW-11) was also present in the  

boat.   According  to  him,  on  the  fateful  day,  that  is,  on  

3

31.08.2000 around 3.00 p.m., he met Tapan Chakraborty at  

Bagan  Bazar  who  requested  him  to  go  to  Santinagar  well  

ahead in connection with peace meeting to be held there and  

to supervise and see that everything was in order.  According  

to  him,  as  directed  by  Tapan  Chakraborty,  he  reached  

Santinagar at 3:00 p.m.  He mentioned that Uttam Shil (A-8)  

enquired from him whether Tapan Chakraborty would attend  

the  meeting.   After  concluding  the  meeting,  Tapan  

Chakraborty and others including PW-11 got into the boat to  

cross the river.  While he was getting down from the boat, he  

heard hue and cry and some one saying “attack them attack  

them”.  He also heard a sound of explosion of bomb on the  

other side of the river and the sound of two rounds of fire.  

Thereafter,  he fled from the spot due to fear.   According to  

him,  after  10  days  of  the  aforesaid  occurrence,  he  met  

Ramakanta Paul (PW-10) at Bagan Bazar.  His evidence shows  

that he was also in the boat, however, he only mentioned that  

accused Uttam Shil  (A-8)  was found near  the  venue  of  the  

meeting  and  he  narrated  about  the  enquiry  made  by  him  

whether Tapan Chakraborty would attend the meeting.  Even,  

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according to him, the said Uttam Shil (A-8) had disappeared  

from the place of meeting.  

d) The  other  three  persons  in  the  boat  were  Ganesh  Kol  

(PW-2), Ramakanta Paul (PW-10), and Prabir Biswas (PW-12).  

No doubt,  all  the  three  witnesses  turned  hostile  since  they  

refused  to  identify  the  assailants  before  the  Court  at  the  

instance of the prosecution.  However, as rightly observed by  

the  High  Court,  they  testified  to  the  other  parts  of  the  

occurrence supporting the prosecution case that on the said  

date and time, a group of miscreants had done to death the  

victim Tapan Chakraborty.  Though, their evidence may not be  

fully  supportable  to  the  prosecution  case,  however,  as  

observed by the High Court, it is clear from their statements  

that  they  accompanied  the  deceased in  the  same boat  and  

corroborated with other witnesses with regard to the factum of  

murder though they did not identify the persons concerned.  It  

is settled position of law that the evidence of hostile witnesses  

need not be rejected in its entirety but may be relied on for  

corroboration.   

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Eye-witnesses in the passenger shed

40) Now, let us discuss the eye-witnesses who were present  

in the passenger shed.

(a)  The four eye-witnesses, namely, Nehar Ranjan Deb (PW-4),  

Bidhu  Urang  (PW-7),  Pranab  Chakraborty  (PW-8)  and  

Satyendra Tanti (PW-9) were waiting in the passenger shed on  

the opposite bank of the river and when the assailants had  

attacked the victim all of a sudden, they rushed to the spot.  

In his evidence, Nehar Ranjan Deb (PW-4) admitted that Tapan  

Chakraborty  was  known  to  him  and  he  was  his  maternal  

uncle.   He  was  the  Vice-Chairman of  Kalyanpur  Panchayat  

Society.  On 31.08.2000, in the evening, at around 06:30 p.m.,  

he  went  to  a  tea  stall  at  Bagan  Bazar  and  found  Pranab  

Chakraborty (PW-8),  younger brother of Tapan Chakraborty.  

Pranab  Chakraborty  told  him  that  Tapan  had  gone  to  

Santinagar  to  attend  a  meeting.   He  requested  him  to  

accompany  him  to  Ferry  Ghat  for  escorting  Tapan  

Chakraborty as he was running a risk of his life because of  

some  untoward  incident  which  took  place  in  his  house.  

Satyendra  Tanti  (PW-9)  and  Bidhu  Urang  (PW-7)  also  

4

accompanied them.  He further explained that they reached  

Ferry  Ghat  at  around  05:45  p.m.  and  took  shelter  in  the  

passenger shed as, at that time, it was drizzling.  According to  

him, while they were waiting in the passenger shed, he had  

noticed  Anil  Das  (A-1)  proceeding  hurriedly  towards  Bagan  

Bazar from the side of Ferry Ghat.  After 5/7 minutes, he had  

seen about 10 youths proceeding towards Ferry Ghat from the  

direction  of  Bagan Bazar.   He  mentioned  the  name of  four  

persons, namely, Gautam Das (A-11), Pradip Das (A-9), Tapan  

Das (A-5) and Mrinal Das (A-4) who were among the youths.  

Those persons were waiting in the Ferry Ghat.  The distance of  

Ferry Ghat from passenger  shed would be 100 cubics.   He  

noticed Tapan Chakraborty and others getting down from the  

boat and as soon as they got down, the miscreants dragged  

Tapan Chakraborty.   All  the persons in the passenger shed  

proceeded towards Ferry Ghat, at that time, they also heard  

the sound of bursting of bomb as well as sound of gun fire.  

They became frightened and retreated for a while, thereafter,  

they proceeded towards Ferry Ghat.  After reaching there, they  

found Tapan Chakraborty lying on the ground with injuries.  

4

They lifted him and brought him on the main road and with  

the help of a Police Mobile Van they took him to Kalyanpur  

Hospital.   However, he admitted that he did not accompany  

them.  He asserted that after the commission of offence the  

miscreants  fled  towards  south.   In  cross-examination,  he  

admitted that the deceased was forefront leader of the CPI (M)  

party.   He denied the suggestion that the murder of  Tapan  

Chakraborty was the result of inter-Party rivalry.   

(b)  Next witness who was present in the passenger shed was  

Bidhu Urang, examined as PW-7.  In his examination-in-chief,  

he  stated  that  Tapan  Chakraborty  was  murdered  on  

31.08.2000 by some miscreants belonging to UBLF extremists  

group.   He  was  killed  at  Santinagar  Ferry  Ghat  at  around  

06:30 p.m. and according to him at the time of occurrence, he  

was sitting in the passenger shed which is about 100 cubics  

away from the place of occurrence.  He also mentioned that  

besides him Pranab Chakraborty (PW-8),  Nahar Ranjan Deb  

(PW-4), Satyendra Tanti (PW-9) were also present there.  He  

also admitted that at that time it was drizzling.  In order to  

protect  themselves  from  the  rain,  they  took  shelter  in  the  

4

passenger shed at around 05:30 p.m.  He also stated in the  

examination-in-chief  about  the  meeting  at  Santinagar  and  

explained  that  the  deceased  Tapan  Chakraborty  went  to  

Santinagar to attend that peace meeting organized by DYFI.  

He  further  explained  that  he  along  with  others  went  to  

Santinagar to escort Tapan Chakraborty.  Like, PW-4, he also  

narrated that while he was sitting in the passenger shed, he  

saw a group of 12/14 persons proceeding towards Santinagar  

Ferry  Ghat,  out  of  which,  he  recognized  Tapan  Das  (A-5),  

Gautam Das (A-11), Pradip Das (A-9) and Somesh Das (A-7).  

At about 06:30 p.m., according to him, he noticed that Tapan  

Chakraborty accompanied by about 15 persons crossing the  

river in a boat.  One Ramakant Paul (PW-10) was one of the 15  

persons who accompanied Tapan Chakraborty.  Suddenly, he  

heard the sound of two gun shots and immediately when he  

looked  forward,  he  saw  a  group  of  persons  running  away  

towards  south-east  direction.   At  once,  he  alongwith  his  

companions  rushed  to  Ferry  Ghat  and  found  Tapan  

Chakraborty in injured condition.  They carried him upto main  

road  and  then  they  took  him  in  a  police  mobile  van.   He  

4

asserted that the group of persons who were found running  

away from the Ferry Ghat was the same whom he saw earlier  

proceeding  towards  Ferry  Ghat  from  Bagan  Bazar.   He  

informed the Court that on 31.08.2000, at around 10:30 p.m.  

one police officer seized blood stained earth from Santinagar  

Ferry Ghat in his presence and drawn seizure list wherein he  

signed.  He  admitted  his  signature  found in  the  seizure  list  

which was marked as Ex.-3.  One Sujit Das also signed the  

seizure list along with him.  He asserted that any two persons  

of the group fired two shots on Tapan Chakraborty.  He also  

informed the Court that before he heard the sound of firing, he  

saw a flash of fire within the circle comprising 12/14 persons.  

The accused persons, namely, Pradip Das (A-9), Tapan Das (A-

5), Somesh Das (A-7) and Gautam Das (A-11) were identified  

in the Court by name and face by PW-7. In cross-examination,  

it is true that he informed the Court that he does not know  

any person named Ratan Sukladas, (PW-6) approver.

(c)  One Pranab Chakraborty was examined as PW-8.  He was  

one  of  the  persons  waiting  in  the  passenger  shed  at  the  

relevant time.  He admitted that Tapan Chakraborty was his  

4

eldest brother.  According to him, prior to his death, he held  

many responsible posts in CPI (M) Party.  Besides, he was the  

Vice  Chairman  of  the  Kalyanpur  Panchayat  Society.   He  

informed the Court that on 31.08.2000, his brother was killed  

by  the  miscreants  at  Santinagar  Ferry  Ghat.   According  to  

him, on that day,  around 05:15 p.m.,  Bidhu Urang (PW-7),  

Nehar  Ranjan  Deb  (PW-4),  Satyendra  Tanti  (PW-9)  and  he  

himself were sitting in the passenger shed which is about 100  

cubics away from Santinagar Ferry Ghat.  PW-8 also deposed  

that  they  were  waiting  in  the  passenger  shed  to  escort  his  

brother  who was  supposed  to  return  from Santinagar  after  

attending  a  peace  meeting.   He  explained  that  from Bagan  

Bazar, they went straight to passenger shed.  He also stated  

that  there  was  security  threat  on  the  life  of  his  brother  

because  of  which  they  used  to  accompany  and  escort  him  

whenever he go outside in connection with any party work.  

When they were waiting in the passenger shed, it was drizzling  

and  at  that  time  they  saw  a  good  number  of  persons  

proceeding  towards  Ferry  Ghat  out  of  them  he  recognized  

Tapan Das (A-5),  Gautam Das (A-11),  Pradip Das (A-9)  and  

4

Anil Das (A-1).  He saw Anil Das (A-1) coming hurriedly from  

the other side of  the river.   He deposed,  as soon as Tapan  

Chakraborty reached near the bank of the river he heard hue  

and cry and at that time he also heard sound of two rounds of  

fire.  Thereafter, they rushed to the place of occurrence, and  

then the miscreants ran away towards south-east direction.  

On arriving at the place of occurrence, he found Tapan lying  

on the ground with his upside down with two bullet injuries  

one on the left side of his back and another on the back of his  

head.  The wounds were bleeding profusely.  With the help of  

others, he took his brother up to the main road and thereafter  

took him to the hospital in a police van.  As the condition of  

his  brother  was  alarming,  he  was  shifted  to  GB  Hospital,  

Agartala from Kalyanpur hospital.  He identified Anil Das (A-

1), Pradip Das (A-9), Gautam Das (A-11) in the Court by name  

and face.  In cross-examination, he denied the suggestion that  

he could not recognize Tapan Das (A-5), Pradip Das (A-9) and  

Gautam Das (A-11).  He also mentioned that Ramakanta Paul  

(PW-10),  Prabir  Biswas  (PW-12),  Nilai  Das  (PW-3),  Benu  

Ranjan Dhupi (PW-11),  Sujit  Das, Subrata Das, Rajesh Das  

4

were in the boat along with his brother while crossing the river

(d)  Another witness from the passenger shed was Satyendra  

Tanti (PW-9).  Like other witnesses, namely, PWs 4, 7 and 8,  

he also explained the said incident.  He admitted that Tapan  

Chakraborty  was  the  Vice  Chairman,  Kalyanpur  Panchayat  

Society and held several responsible posts in the CPI (M) party.  

He also admitted that Tapan was related to his family.  Since,  

he  informed  the  Court  that  he  did  not  notice  any  of  the  

persons  while  coming  out  of  the  passenger  shed,  he  was  

declared as a hostile witness from the side of the prosecution.  

Though PW-9 turned hostile as stated earlier, he admitted that  

he along with Pranab Chakraborty (PW-8), Nehar Ranjan Deb  

(PW-4) and Bidhu Urang (PW-7) were sitting in the passenger  

shed with a view to escort his brother Tapan Chakraborty.  

41) The  analysis  of  statement  of  various  persons,  

particularly, eye-witnesses clearly strengthen the case of PW-

6, approver, in all aspects including conspiracy, planning to  

attack  the  deceased  for  his  statement  about  the  students’  

movement, actual incident, role played by the assailants and  

subsequent  events  after  the  gunshot  till  the  death  of  the  

4

deceased Tapan Chakraborty.  We are satisfied that by these  

statements, the prosecution has strengthened its case through  

PW-6 approver and there is no reason to disbelieve his version.

Reliance on the hostile witness

42) In the case on hand Ganesh Kol (PW-2), Satyendra Tanti  

(PW-9), Ramakanta Paul (PW-10) and Prabhir Biswas (PW-12)  

were  declared  as  hostile  witnesses.   It  is  settled  law  that  

corroborated  part  of  evidence  of  hostile  witness  regarding  

commission of offence is admissible.  The fact that the witness  

was declared hostile at the instance of the Public Prosecutor  

and he was allowed to cross-examine the witness furnishes no  

justification for rejecting  en bloc the evidence of the witness.  

However, the Court has to be very careful, as  prima facie, a  

witness who makes different statements at different times, has  

no  regard  for  the  truth.   His  evidence  has  to  be  read  and  

considered as a whole with a view to find out whether any  

weight should be attached to it.  The Court should be slow to  

act on the testimony of such a witness,  normally,  it  should  

look for corroboration with other witnesses.  Merely because a  

witness  deviates  from  his  statement  made  in  the  FIR,  his  

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evidence cannot be held to be totally unreliable.  To make it  

clear that evidence of  hostile  witness can be relied upon at  

least up to the extent, he supported the case of prosecution.  

The evidence of a person does not become effaced from the  

record  merely  because  he  has  turned  hostile  and  his  

deposition must be examined more cautiously to find out as to  

what extent he has supported the case of the prosecution.    

43) In  our  case,  eye  witnesses  including  the  hostile  

witnesses,  firmly  established  the  prosecution  version.   Five  

eye-witnesses,  namely,  PW-1,  PW-4,  PW-6,  PW-7  and PW-8  

clearly identified two convicts-appellants, Tapan Das (A-5) and  

Gautam Das (A-11).   PWs 1,  4,  7 and 8 identified accused  

Pradip Das (A-9).  PWs 1 & 7 identified accused Somesh Das  

(A-7).   PWs 1 & 4 identified Mrinal  Das (A-4).   PWs 4 & 8  

identified Anil Das (A-1).  It is clear that 6 accused persons  

including two convicts-appellants had been identified by more  

than one eye-witnesses.  It is also clear that 6 accused could  

have been identified by the eye witnesses though all of them  

could  not  have  been  identified  by  the  same  assailants.  

However,  it  is  clear  that  two or  more  than 2 eye-witnesses  

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could identify one or more than one assailants.  The general  

principle of appreciating evidence of eye witnesses, in such a  

case is that where a large number of offenders are involved, it  

is necessary for the Court to seek corroboration, at least, from  

two or more witnesses as a measure of caution.  Likewise, it is  

the quality and not the quantity of evidence to be the rule for  

conviction  even  where  the  number  of  eye  witnesses  is  less  

than two.   

44) It is well settled that in a criminal trial, credible evidence  

of even hostile witnesses can form the basis for conviction.  In  

other  words,  in  the  matter  of  appreciation  of  evidence  of  

witnesses,  it  is  not  the  number  of  witnesses  but  quality  of  

their evidence.  As rightly observed by the High Court, there  

are  only  six  accused  persons  namely,  Tapan  Das  (A-5),  

Gautam  Das  (A-11),  Pradip  Das  (A-9),  Mrinal  Das  (A-4),  

Somesh Das (A-7) and Anil Das (A-1) identified by two or more  

eye witnesses while Tapan Das (A-5) and Gautam Das (A-11)  

were recognized by PWs 1, 4, 7 and 8 corroborated by PW-6  

(approver).  Somesh Das (A-7) was recognized by PWs-1 & 7,  

Mrinal Das (A-4) by PWs 1 & 4 and Anil Das (A-1) by PWs 4 &  

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8, all of them being corroborated by PW-6 (approver).  If PW-6  

(approver) is included, there are three eye-witnesses who could  

identify  six  offenders  including  two  convicts-appellants.  

Inasmuch as we were taken through the entire evidence of the  

abovementioned  witnesses,  we  fully  endorse  the  view  

expressed by the High Court.  

45) Now  we  have  to  find  out  whether  the  High  Court  is  

justified in interfering with the order of  acquittal  insofar  as  

accused Anil Das (A-1), Mrinal Das (A-4), Somesh Das  (A-7)  

and  Pradip  Das  (A-9)  are  concerned,  in  the  light  of  the  

principles which we have explained in the earlier part of our  

judgment.   The trial  Court,  after  finding that the factum of  

conspiracy  as  disclosed  by  the  approver  remains  

unsubstantiated  for  want  of  independent  corroborating  

evidence, acquitted them.  Since the High Court has reversed  

the  said  decision  of  acquittal  and  convicted  the  accused  

persons relying on Section 34 IPC, let us find out whether the  

High Court is justified in upsetting the order of acquittal into  

conviction.  Section 34 IPC reads as under:

“34.  Acts  done  by  several  persons  in  furtherance  of  common intention.- When a criminal act is done by several  

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persons in furtherance of the common intention of all, each  of such persons is liable for that act in the same manner as  if it were done by him alone.”

The  reading  of  the  above  provision  makes  it  clear  that  the  

burden  lies  on  prosecution  to  prove  that  the  actual  

participation  of  more  than  one  person  for  commission  of  

criminal act was done in furtherance of common intention at a  

prior concept.  Further, where the evidence did not establish  

that  particular  accused  has  dealt  blow  the  liability  would  

devolve  on  others  also  who  were  involved  with  common  

intention  and  such  conviction  in  those  cases  are  not  

sustainable.   A clear distinction made out between common  

intention  and  common  object  is  that  common  intention  

denotes  action  in  concert  and  necessarily  postulates  the  

existence of a pre-arranged plan implying a prior meeting of  

the minds, while common object does not necessarily require  

proof of prior meeting of minds or pre-concept.  Though there  

is  substantial  difference  between  the  two  sections,  namely,  

Sections 34 and 149 IPC, to some extent they also overlap and  

it is a question to be determined on the facts of each case.   

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46) There  is  no  bar  in  convicting  the  accused  under  

substantive  section  read  with  Section  34  if  the  evidence  

discloses  commission  of  an  offence  in  furtherance  of  the  

common intention of them all.  It is also settled position that  

in order to convict a person vicariously liable under Section 34  

or Section 149 IPC, it is not necessary to prove that each and  

every one of them had indulged in overt acts in order to apply  

Section 34, apart from the fact that there should be two or  

more  accused.   Two  facts  must  be  established,  namely  a)  

common  intention  b)  participation  of  accused  in  the  

commission of an offence.  It requires a pre-arranged plan and  

pre-supposes prior  concept.   Therefore,  there must be prior  

meeting of minds.  It can also be developed at the spur of the  

moment but there must be pre-arrangement or pre-meditated  

concept.  As rightly observed by the High Court, though the  

trial Court was of the view that the evidence of an approver  

contains  full  and  correct  version  of  the  incident  so  far  as  

participation of the accused Tapan Das (A-5) and Gautam Das  

(A-11), however, there is no plausible reason by the trial Court  

as to why the other part of the statement of the approver could  

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not be believed.  We have already pointed out that in order to  

seek  the  aid  of  Section  34  IPC,  it  is  not  necessary  that  

individual act of the accused persons has to be proved by the  

prosecution by direct evidence.  Again, as mentioned above,  

common intention has to be inferred from proved facts and  

circumstances and once there exist common intention, mere  

presence of the accused persons among the assailants would  

be sufficient  proof  of  their  participation in the offence.   We  

agree  with  the  conclusion  of  the  High  Court  that  the  trial  

Court failed to explain or adduce sufficient reasons as to why  

the other part of the evidence that the accused persons named  

by the approver were found present in the place of occurrence  

could not be believed for the purpose of invoking Section 34  

when two or more eye-witnesses corroborated the testimony of  

approver  (PW-6)  specifically  naming  six  accused  persons  

including the two convicted appellants.   

47) The  existence  of  common  intention  amongst  the  

participants  in  the  crime  is  the  essential  element  for  

application of Section 34 and it is not necessary that the acts  

of several persons charged with the commission of an offence  

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jointly  must  be  the  same  or  identically  similar.   We  have  

already pointed out from the evidence of eye-witnesses as well  

as the approver (PW-6) that one Uttam Shil (A-8) was deployed  

at the place of meeting at Santinagar for the purpose of giving  

intimation to other accused persons about the movement of  

the deceased.  It is also seen from the evidence that one more  

accused was stationed on the shore of the river near Bagan  

Bazar.  It is also seen from the evidence that after the meeting,  

the boat carrying Tapan Chakraborty and other eye-witnesses  

was about to reach Bagan Bazar shore, accused Anil Das (A-1)  

who was deployed there suddenly left  towards Bagan Bazar  

and within  few minutes  10  accused  persons  rushed  to  the  

boat from Bagan Bazar.  Thereafter, the occurrence took place.  

The materials placed by the prosecution, particularly, from the  

eye-witnesses, the common intention can be inferred among  

the accused persons including the six persons identified by  

the eye-witnesses.  If we consider the case of the prosecution  

in the light  of  the disclosure made by the approver (PW-6),  

coupled with the statement of eye-witnesses, it is clear that  

the 13 assailants had planned and remained present on the  

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shore of the river to eliminate Tapan Chakraborty.  In view of  

these materials, the High Court is right in applying Section 34  

IPC and basing conviction of six accused persons including the  

two convicted appellants that is Tapan Das (A-5), Gautam Das  

(A-11), Pradip Das (A-9), Somesh Das (A-7), Mrinal Das (A-4)  

and Anil Das (A-1).  

Medical evidence:

48) The Doctor who conducted the post mortem on the dead  

body was examined as PW-14 and his report has been marked  

as Ex.7.  The said report shows three fire arm wounds on the  

dead  body  of  the  deceased.   One,  measuring  0.75  cm.  in  

radius over upper part of left anterior chest wall at posterior  

auxiliary plane, two, lacerated injury 3 cms. X .5 cm x bone  

deep occipital region, and three, lacerated injury, 4 cm x 1 cm  

x  bone  deep  over  occipital  region  of  skull.   PW-14  has  

categorically stated that the first injury was sustained by the  

deceased on his back.  According to him, injury Nos. 2 and 3  

might be received by the deceased by the same bullet if the  

bullet had split.  We also verified the post mortem examination  

report (Ex.7) and the medical evidence of PW-14 and find no  

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inconsistency between the contents in his report (Ex. 7), his  

evidence as PW-14 and the ocular  evidence of  the approver  

(PW-6).  As rightly observed by the trial Court and the High  

Court, the ocular version i.e., evidence of the approver (PW-6)  

stands  corroborated  by  the  medical  evidence  of  PW-14 and  

(Ex.7).  We concur with the said conclusion.

49) Though  Mr.  Sidharth  Luthra,  learned  senior  counsel  

appearing for the appellants pointed out certain contradictions  

in the statement of witnesses with their previous statements  

recorded during investigation and with all their statements in  

the  Court,  on  verification,  we  are  satisfied  that  those  

contradictions, if any, are only minimal and it would not affect  

the claim of the prosecution case.  We have already discussed  

elaborately  about  the  identification  of  the  assailants  by  the  

prosecution witnesses including the approver (PW-6).  Though  

it  was  pointed  out  by  the  learned  senior  counsel  for  the  

appellants  that  none  of  the  seven  witnesses  other  than  

approver  (PW-6)  could recognize  all  the assailants,    in the  

earlier  paragraphs,  we  have  pointed  out  that  each  witness  

identified  at  least  two  assailants  and  approver  (PW-6)  has  

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identified all  of  them.  In a case of this nature where large  

number of persons committed the crime, it is but natural that  

due  to  fear  and  confusion  a  witness  cannot  recognize  and  

remember all the assailants.  If any witness furnishes all the  

details accurately, in that event also it is the duty of the Court  

to verify his version carefully.   

Conclusion

50) As discussed earlier,  the  statement  of  approver  (PW-6)  

inspires confidence including the conspiracy part which gets  

full support from the narration of the occurrence given by the  

eye-witnesses, more particularly, as to the deployment of some  

of the offenders for reporting to others about the movement of  

the victim.  As rightly pointed out by the High Court, there is  

nothing  wrong  in  accepting  his  entire  statement  and  true  

disclosure  of  the  incident  coupled  with corroboration of  his  

evidence with the eye witnesses.     We fully agree with the  

discussion  and  ultimate  conclusion  arrived  at  by  the  High  

Court and unable to accept any of the contentions raised by  

the learned senior counsel for the appellants.

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51) Under  these  circumstances,  we  confirm  the  ultimate  

decision arrived at by the High Court.  Consequently, both the  

appeals fail  and are accordingly dismissed as devoid of  any  

merit.       

  ………….…………………………J.  

         (P. SATHASIVAM)                                   

 .…....…………………………………J.    (H.L. GOKHALE)  

NEW DELHI; SEPTEMBER 5, 2011.

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