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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  17    of 2016 (Arising out of SLP (Crl.) No.2600 of 2013)

SUDIP KR. SEN @ BILTU                   ..Appellant Versus

STATE OF WEST BENGAL & ORS.                             ..Respondents WITH

CRIMINAL APPEAL NO.  19    of 2016 (Arising out of SLP (Crl.) No.4506 of 2013)

GOUTAM GHOSH                                  ..Appellant Versus

STATE OF WEST BENGAL               ..Respondent

CRIMINAL APPEAL NO.  21   of 2016 (Arising out of SLP (Crl.) No.5362 of 2013)

APU CHATTERJEE @ SOUMITRA                     ....Appellant  Versus

STATE OF WEST BENGAL                                  ..Respondent

CRIMINAL APPEAL NO.  23    OF 2016 (Arising out of SLP (Crl.) No.1370 of 2014)

SANKAR DAS @ BHAI                              …Appellant Versus

STATE OF WEST BENGAL                       …Respondent AND

CRIMINAL APPEAL NO.  25    OF 2016 (Arising out of SLP (Crl.) No.8098 of 2014)

TAPAS DAS @ BHAMBAL                          …Appellant Versus

STATE OF WEST BENGAL                       …Respondent

J U D G M E N T

R. BANUMATHI, J.

Delay condoned.  Leave granted.  

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2. These appeals  arise  out  of  the common judgment dated  

24.09.2012 passed by the High Court of Calcutta dismissing Criminal  

Appeal No.544 of 2004 filed by the appellants and thereby affirming  

the conviction of the appellants under Section 302 read with Section  

34 IPC and sentence of life imprisonment and a fine of rupees five  

thousand imposed on each of them.

3. Briefly stated case of the prosecution is that on 13.01.2002  

at  about  08.30  p.m.,  complainant-PW1-Gora  Das  was  having  tea  

alongwith some of his friends at the shop of one Bablu Pal-PW5 at  

Shakherbazar.  Sandipan  Majumdar-PW6  sitting  on  his  motorcycle  

was also having tea in front of tea stall of PW-5.  At that time, the  

appellants  came  in  a  body  to  the  place  of  occurrence.  At  first,  

appellant-Sudip Kumar Sen @ Biltu (A-3) abused the deceased-Saikat  

Saha and asked him as to why he did not meet Jishu da in the court  

as  he  was  asked  to  do  so  at  several  occasions.  Appellant-Apu  

Chatterjee @ Soumitra (A-6) said that if the men of Khoka were not  

killed then there would be no peace. On such exhortation, appellants-

Tapas Das @ Bhambal (A-2) and Sankar Das @ Bhai (A-4) caught hold  

of Saikat Saha-deceased and appellants Goutam Ghosh (A-1) and Sk.  

Kochi @ Sk. Mobarak (A-5) fired at him and Saikat Saha sustained  

two gunshot injuries in the right chest. Gora Das-PW1 and Sandipan  

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Majumdar-PW6  had  immediately  taken  injured  Saikat  Saha  to  

Calcutta Medical Research Institute. Dr. Debasish Pal-PW9 examined  

Saikat Saha and declared that he was brought dead and issued Injury  

Report (Ex.4) and Death Certificate (Ex-P4/1).

4. Gora Das-PW1 lodged the complaint on 14.01.2002 at 1.45  

a.m. before Thakurpukur Police Station, on the basis of  which FIR  

was registered in Case No.12 of 2002 under Section 302 read with  

Section  34  IPC  and  Sections  25  and  27  of  the  Arms  Act  against  

unknown persons.  A. K. Ghosh- Investigating Officer-PW13 had taken  

up the investigation and visited the spot and examined the available  

witnesses  including  PW6-Sandipan  Majumdar  who  informed  the  

police  that  he  had witnessed the  event  and PW-6 also  named the  

accused.  On his statement, the appellants and accused Sk. Kochi @  

Sk. Mobarak and one Jishu Jain were arrested.  After investigation,  

chargesheet was filed against the appellants and other accused under  

Section 302 read with Section 34 IPC, Section 120-B IPC and Sections  

25 and 27 of the Arms Act.

5. To  prove  the  charges  against  the  accused,  prosecution  

examined  thirteen  witnesses  and  adduced  documentary  evidence.  

Upon  appreciation  of  evidence  and  observing  that  PW-6  is  a  

trustworthy witness, Additional Sessions Judge, Alipore convicted the  

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appellants and Sk. Kochi under Section 302 read with Section 34 IPC  

and sentenced each of them to undergo life imprisonment and also  

imposed a fine of rupees five thousand on each of them.  The trial  

court acquitted the co-accused Jishu Jain of all the charges levelled  

against him.  Aggrieved by the verdict of conviction, the appellants  

filed appeal  before  the High Court.  The High Court  vide impugned  

judgment dated 24.09.2012 dismissed the appeal thereby affirmed the  

conviction and sentence imposed on the appellants as aforesaid. Being  

aggrieved, the appellants-Goutam Ghosh (A-1), Tapas Das @ Bhambal  

(A-2), Sudip Kr. Sen @ Biltu (A-3), Sankar Das @ Bhai (A4) and Apu  

Chatterjee @ Soumitra (A-6) are before us.  Accused Sk. Kochi @ Sk.  

Mobarak (A-5) has not challenged the impugned judgment.

6. Learned counsel for the appellants contended that both the  

courts  below  failed  to  take  into  account  the  serious  flaws,  

inconsistencies  and  contradictions  in  the  statement  of  prosecution  

witnesses which according to the appellants, practically demolished  

the  version of  the  prosecution  as  propounded  by  the  testimony  of  

PW-6.  It  was  submitted  that  in  the  cross-examination,  PW-1  

categorically stated that at the time of occurrence he and his friends  

ran to the spot which is at a distance of few yards from the tea stall  

and therefore PW-6 could not have witnessed the occurrence sitting  

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on the motor cycle and taking tea along with PW-1 and version of  

PW-6  is  totally  contradictory  to  the  statement  of  PW-1.   Raising  

doubts as to the credibility of testimony of PW-6, it was submitted  

that PW-6 is said to have accompanied PW-1 in taking the deceased to  

the hospital, he did not reveal the identity of the assailants to PW-1  

and not  even at  the  time  of  lodging the  FIR which was  registered  

against unknown persons.

7. Per  contra,  learned  counsel  for  the  respondent-State  

contended that the culpability of the appellants have been proved to  

the hilt by the evidence of PW-6 who was a natural eye-witness to the  

occurrence and that he was standing outside the tea stall and was in  

a vantage position to see the assailants and witness the occurrence.  

It was further submitted that the courts below recorded concurrent  

findings to the credibility of PW-6 and there is no ground warranting  

interference with the conviction of the appellants.

8. We have considered the rival contentions and perused the  

impugned judgment and material on record.

9. Sandipan Majumdar-PW6 has stated that on the date of  

the  incident  i.e.  on  13.01.2002  at  about  8.30  p.m.,  while  he  was  

taking tea at the tea stall at Shakerbazar, Saikat Saha, PW1-Gora Das  

and others were also taking tea there.  PW-6 had categorically stated  

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that  the  assailants  armed  with  firearms  came  together  and  Sudip  

Kumar Sen (A-3) started abusing Saikat Saha and questioned him as  

to  why  he  did  not  meet  Jishu  da  in  the  court  inspite  of  several  

reminders. Apu Chatterjee (A-6) shouted that there will be no peace if  

the men of Khoka were not killed.  On such exhortation, Tapas Das  

(A-2), Sankar Das (A-4) caught hold of deceased and Goutam Ghosh  

(A-1) and Sk. Kochi (A-5) fired at Saikat Saha.  PW-6 stated that the  

appellants were doing illegal business of collecting money from the flat  

owners  in  the  locality  and an  altercation took place  over  the  said  

matter and PW-6 further stated that the appellants also used to come  

to the deceased and thus he knew all of them.  PW-6 was examined by  

the  police  on  the  very  next  day  i.e.  on  14.01.2002  and  in  his  

statement  before  the  police,  PW-6  named  the  appellants-accused  

except Jishu Jain as the assailants.  PW-6 was a natural eye-witness  

to the incident.  Throughout the searching cross-examination,  PW-6  

remained consistent and his evidence remained unshaken. That PW-6  

is  a  natural  witness  is  also  borne  out  from  the  fact  that  PW-6  

accompanied PW1-Gora Das in immediately  taking the deceased to  

the hospital and the same is evident from the Injury Report (Ex.4) and  

Death Certificate  (Ex-4/1)  issued by PW9-Dr.   Debasish Pal  which  

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clearly  mention  that  the  deceased  was  brought  to  the  hospital  by  

PW-1 and PW-6.  

10. Complainant-Gora  Das  (PW-1),  though  not  named  the  

assailants, in his evidence stated that while he was taking tea in the  

tea stall of Bablu Pal (PW-5) situated at Shakherbazar Behala at about  

8.30 p.m., he heard sound of the firearm and when he ran to the spot,  

he found the deceased-Saikat Saha lying with bleeding injuries and  

that he along with PW-6 took the injured to Calcutta Medical Research  

Institute.  Evidence of Pinku Biswas-PW2 is also to the same effect  

that he heard the sound of  two shots and there was chaos in the  

street  and  shutters  were  closed  down  by  shopkeepers  and  after  

sometime when people came out, they saw Saikat Saha with gunshot  

injuries. Evidence of Paritosh Pal-PW3 and Gora Das-PW1 who are the  

nearby shop owners is also to the same effect.  Though PWs 1 to 4  

have not named the assailants, their evidence shows that there was  

an occurrence in which Saikat Saha was shot by the assailants which  

lends assurance to the evidence of PW-6.  Evidence of PW-6 that the  

deceased  sustained  two  gunshot  injuries  is  also  supported  by  the  

medical  evidence  i.e.  Injury  Report  (Ex.4)  and  Death  Certificate  

(Ex.4/1) issued by Dr. Debasish Pal (PW-9).

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11. It is well-settled that the court may act on a  testimony of a  

single witness though uncorroborated, provided that the testimony of  

single witness is found reliable.  Trial court which had the opportunity  

of seeing and hearing PW-6 found him wholly reliable and trustworthy  

and  held  that  evidence  of  Sandipan  Majumdar-PW6  cannot  be  

doubted as far as the role attributed to A-1 to A-6 except Jishu Jain is  

concerned, which was affirmed by the High Court.  We find no ground  

to interfere with the concurrent finding recorded by the Courts below  

as to the reliability of PW-6 and to record the conviction.

12. Observing  that  there  is  no  impediment  for  recording  

conviction based on the testimony of a single witness provided it is  

reliable  in  Prithipal  Singh  &  Ors. vs.  State of  Punjab  &  Anr.,  

(2012) 1 SCC 10, it was observed as under:-  

“49. This Court has consistently held that as a general rule the court  can and may act on the testimony of a single witness provided he is  wholly reliable. There is no legal impediment in convicting a person on  the sole testimony of a single witness. That is the logic of Section 134 of  the Evidence Act. But if there are doubts about the testimony, the court  will  insist  on  corroboration.  In  fact,  it  is  not  the  number  or  the  quantity, but the quality that is material. The time-honoured principle  is that evidence has to be weighed and not counted. The test is whether  the evidence has a ring of truth, is cogent, credible and trustworthy or  otherwise. The legal system has laid emphasis on value, weight and  quality of evidence, rather than on quantity, multiplicity or plurality of  witnesses.  It  is,  therefore,  open  to  a  competent  court  to  fully  and  completely rely on a solitary witness and record conviction. Conversely,  it may acquit the accused in spite of testimony of several witnesses if it  is not satisfied about the quality of evidence.” [See Vadivelu Thevar v.  State of Madras, AIR 1957 SC 614, Sunil Kumar v. State (Govt. of NCT of   Delhi, (2003) 11 SCC 367,  Namdeo v.  State of Maharashtra,  (2007) 14  SCC 150 and Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91]

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13. The  appellants  are  convicted  for  the  offence  under  

Section  302  read  with  Section  34  IPC.  Learned  counsel  for  

appellants–accused (A-2 to A-4 and A-6) submitted that accused  

Sudip Kumar Sen (A-3) and Apu Chatterjee (A-6) are said to have  

abused the deceased and Tapas Das (A-2) and Sankar Das (A-4) are  

alleged  to  have  caught  hold  of  the  deceased  and  there  is  no  

evidence that A-2 to A-4 and A-6 have shared common intention  

with  other  co-accused  to  fire  at  the  deceased  and  therefore  

conviction of these accused under Section 302 read with Section 34  

IPC is not sustainable.   

14. Section 34 IPC embodies the principle of joint liability in  

the  doing  of  a  criminal  act  and  essence  of  that  liability  is  the  

existence of common intention. Common intention implies acting in  

concert  and  existence  of  a  pre-arranged  plan  which  is  to  be  

proved/inferred either from the conduct of the accused persons or  

from attendant circumstances. To invoke Section 34 IPC, it must be  

established  that  the  criminal  act  was  done  by  more  than  one  

person  in  furtherance  of  common  intention  of  all.  It  must,  

therefore, be proved that:- (i) there was common intention on the  

part  of  several persons to commit a particular crime and (ii) the  

crime  was  actually  committed  by  them  in  furtherance  of  that  

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common intention. Common intention implies pre-arranged plan.  

Under  Section  34  IPC,  a  pre-concert  in  the  sense  of  a  distinct  

previous plan is not necessary to be proved. The essence of liability  

under Section 34 IPC is conscious mind of persons participating in  

the criminal action to bring about a particular result.  The question  

whether  there  was  any  common intention or  not  depends  upon  

inference to be drawn from the proved facts and circumstances of  

each case. The totality of  the circumstances must be taken into  

consideration in  arriving  at  the  conclusion whether  the accused  

had a  common intention to  commit  an offence  with  which they  

could be convicted.   

15. Considering the facts and circumstances of the case in  

hand,  it  is  evident  that  there  was  prior  concert  and  that  the  

appellants have acted in furtherance of common intention.  As seen  

from  the  evidence  of  PW-6,  all  the  appellants  and  another  co-

accused Sk. Kochi were doing illegal business of extorting money  

from the flat owners.  On the date of occurrence, all the appellants  

and another co-accused Sk. Kochi came together and Sudip Kumar  

Sen @ Biltu (A-3) started abusing the deceased and Apu Chatterjee  

(A-6) exhorted others that if the men of Khoka were not killed, there  

would be no peace. On such exhortation, Tapas Das and Sankar  

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Das (A-2 and A-4) caught hold of the deceased and Goutam Ghosh  

and  Sk.  Kochi  (A-1  and  A-5)  fired  at  the  deceased.  Facts  and  

circumstances  clearly  establish  meeting  of  minds  and  common  

intention  of  the  appellants  in  committing  the  murder  of  Saikat  

Saha and the appellants were rightly convicted under Section 302  

read with Section 34 IPC.  No ground for interference under Article  

136 of the Constitution of India is made out.    

16. In  the  result,  all  the  appeals  fail  and  are  dismissed  

accordingly.

……………………..CJI.                             (T.S. THAKUR)   

………………………..J.                  (R. BANUMATHI)     

New Delhi; January  07, 2016       

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