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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.507     OF     2007   

Shyamal Ghosh     ... Appellant

Versus

State of West Bengal     ... Respondent

WITH

CRIMINAL     APPEAL     NO.     1369     OF     2007   

  AND      

CRIMINAL     APPEAL     NOS.     539-540     OF     2011   

J     U     D     G     M     E     N     T   

Swatanter     Kumar,     J  .

1. Eight accused, namely, Panchanan Tarafdar @ Chotka,  

Uttam Das, Dipak Das @ Mou, Manoranjan Debnath @ Behari,  

Bishu Saha @ Chor Bishu, Satyajit Das @ Sadhu, Ganesh Das  

and Shyamal Ghosh, were charged with offences under Sections

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302, 201, 379, 411 read with Section 34 of the Indian Penal  

Code, 1860 (for short, the ‘IPC’).  All these accused were found to  

be guilty of the offences with which they were charged by the Trial  

Court vide its judgment dated 13th September, 2005.  After  

hearing them on the quantum of sentence, vide order dated 14th  

September, 2005, finding the offence to be that in the category of  

rarest of the rare cases, the Trial Court awarded sentence of  

death to all the accused persons for the offence under Section  

302 IPC and directed that they be hanged by neck till they are  

dead, subject to confirmation by the Calcutta High Court.  For the  

offence under Section 201 IPC, they were sentenced to undergo  

rigorous imprisonment for a period of seven years and to pay a  

fine of Rs.5,000/- each, in default to further undergo simple  

imprisonment for one year and for the offence under Section 379  

IPC to undergo imprisonment of three years and fine of  

Rs.1,000/- each in default to undergo six months simple  

imprisonment.   

2. Aggrieved by the judgment of conviction and order of  

sentence passed by the Trial Court, all the accused preferred five  

different appeals before the High Court and prayed for setting  

aside the judgment of the Trial Court and their consequential  

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acquittal.  The High Court, vide its judgment dated 5th February,  

2007, while answering the death reference in the negative,  

acquitted all the accused persons of the offence under Section  

379 read with Section 34 IPC.  However, while sustaining their  

conviction under Section 302 read with Section 34 IPC, the Court  

awarded them rigorous imprisonment for life and to pay a fine of  

Rs.5,000/- each in default to undergo rigorous imprisonment for  

two years each.  The High Court maintained the sentence  

imposed upon the accused by the Trial Court under Section 201  

read with Section 34 IPC.  

3. The legality and correctness of the judgment of the High  

Court dated 5th February, 2007 has been challenged before this  

Court by accused Shyamal Ghosh in Criminal Appeal No.507 of  

2007, Manoranjan Debnath @ Behari in Criminal Appeal No.1369  

of 2007 and Panchanan Tarafdar @ Chotka and Uttam Das in  

Criminal Appeal Nos.539-540 of 2011.   

4. Since all these appeals arise from a common judgment of  

the High Court, it will be proper for this Court to deal with all  

these appeals in a common judgment.  At the very outset, we  

may notice that even the contentions raised on behalf of different  

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accused in their respective appeals are by and large the same.  

Therefore, it will be proper for this Court to deal with all the  

appeals collectively, more so, when they are based upon common  

questions of facts and law.

5. Now, we may refer to the case of the prosecution which has  

resulted in filing of the present appeals.  In the present case, the  

First Information Report (FIR), Exhibit 12, was lodged at P.S.  

Khardah on 1st October, 2003 by one Apu @ Sukalyan Mukherjee,  

PW15, wherein he stated that on 30th September, 2003 at around  

10.00 p.m., he had seen two gunny bags containing severed head  

and other mutilated body parts of a human body opposite Tapan  

Santra’s garden near Dangadingla Electric Tower at Patulia  

Barabagan by the side of Barrakpore Dum Dum Highway.  Since  

he suspected some foul play, he reported the matter and  

requested for investigation thereof in accordance with law.  On  

the basis of this information, a case being case No.332/03 under  

Sections 302/201/34 IPC was registered against unknown  

miscreants and the Investigating Officer, S.I. Bholanath Dey,  

PW28 started the investigation and rushed to the spot where the  

said gunny bags had been noticed.  He completed the inquest  

over the mutilated dead body in presence of the witnesses.  On 1st  

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October, 2003 itself, wife of the deceased Smt. Lily  

Bhattarcharjee, PW4, and elder brother of the deceased, Arindam  

Bhattacharjee, PW6, came to the police station and identified the  

mutilated dead body to be that of Archideb Bhattacharjee who  

was stated to have been missing since 29th September, 2003.

6. Further, the case of the prosecution reveals that on 29th  

September, 2003, at about 9.00 p.m. the victim Archideb  

Bhattacharjee had started from his house on his Avon bicycle to  

visit one Chandan Dey of Ghola Gouranganagor for making  

tagada in connection with his business and he started back  

therefrom at about 11.00 p.m. for returning to his home but on  

his way back, he was restrained by the accused persons near  

Goshala Field at about 11.30 p.m. and was assaulted by them.  

The accused persons strangulated him and ultimately he was  

murdered by them on the midnight of 29th/30th September, 2003.  

With the intention to cause disappearance of evidence of the said  

murder, the accused persons subsequently severed the head,  

legs, hands and body of the corpse by a sharp cutting weapon  

and after putting the same in gunny bags, carried it in a Maruti  

Van at about 9.00 p.m. on the following day i.e. 30th September,  

2003 and left the same at Pathulia Danga-dingla by the side of  

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Barrackpore Dum Dum Highway near the Electric Tower and in  

front of the garden of Tapan Santra.  Subsequently, as already  

noticed, at about 10.00 p.m. on that day these two sacks  

containing the dismembered and beheaded corpse were noticed  

by PW15 who then reported the matter to the Police.

7. Since Archideb Bhattacharjee did not return to his home  

after visiting Chandan Dey on the night of 29th September, 2003,  

his wife and elder brother had gone to the house of Chandan Dey  

at Ghola where they came to know that at about 11.00 p.m. he  

had left for his own home after collecting the money from him.  

Having come to know of that fact, the wife and brother of the  

deceased went to the Police Station and lodged a missing diary  

report being G.D. No.1163 dated 30th September, 2003  

whereafter, as already noticed, they were called to the Police  

Station for identifying the dead body of Archideb Bhattarcharjee  

on 1st October, 2003.  During the course of investigation, it was  

also revealed that before the date of occurrence, the eight accused  

persons led by Uttam Das, Panchanan and Mou @ Dipak had  

demanded Rs.40,000/- from Archideb Bhattarcharjee towards  

‘Tola Mastani Salami’  in relation to construction of six shop  

rooms on his own land for letting the same.  Archideb had  

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refused to succumb to this illegal demand.  The accused persons  

had then threatened him with dire consequences.  Archideb  

Bhattarcharjee was once called to the premises of the local East  

Bengal Bayam Samiti Club also where he was threatened.  The  

accused persons had also visited the house of Archideb several  

times for demanding money and, lastly, they had come to the  

house of Archideb on 27th September, 2003 and threatened that if  

their demand of Rs.40,000/- was not fulfilled within one day,  

they would murder him.   

8. On 1st October, 2003, the driver of the Maruti Van, namely,  

Manik Das was arrested by the Police on the basis of a telephonic  

information that dead body of the deceased was carried in the  

said Maruti Van.  Manik Das then made a statement to the Police  

and the Maruti Van was recovered on 13th October, 2003 from the  

car parking place of Sushil Chakraborty at Kalitala Ghosh Para.  

The said Manik Das also made a statement under Section 164 of  

the Code of Criminal Procedure, 1973 (for short, the ‘CrPC) before  

the Court of competent jurisdiction.  Accused Uttam Das, Dipak  

Das @ Mou and Manoranjan Debnath @ Behari, who were  

absconding were apprehended at Delhi with the help of the Police  

at Tilak Marg Police Station.  These three accused persons were  

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brought to Calcutta by the Investigating Officer and upon being  

produced before the Court on 16th October, 2003, they were  

remanded to police custody by the Court.  During their custody  

and at their statement, the Avon Cycle which was driven by the  

deceased, was recovered from an abandoned place near Agarpara  

Railway Station.  On 4th November, 2003, accused Bishu Saha  

was arrested by the police from Highland, Sodhpur and produced  

before the Court.  He was taken into custody.   Later on, even the  

other accused, namely, Shyamal Ghosh and Satyajit Das were  

arrested from Sodhpur.  However, despite its best efforts, the  

Police was not able to arrest accused Ganesh Das and Panchanan  

Tarafdar @ Chotka and declared them absconders.  Charge sheet  

against all other six accused was filed.  However, at a subsequent  

stage, even the said two absconding accused were arrested by the  

Police and produced before the Court and they also were charged  

with the same offences.   

9. Thus, all the accused were charged with the afore-stated  

offences and subjected to face trial before the Court of competent  

jurisdiction.  After evidence of the prosecution was closed, the  

incriminating material was put to the accused and their  

statements under Section 313 of the Cr.P.C. were recorded.  As  

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already noticed, thereafter, the accused were convicted by the  

Trial Court and upon appeal before the High Court, they were  

acquitted of the offence under Section 379 IPC but sentenced to  

life imprisonment for the offence under Section 302 read with  

Section 34 IPC and were also sentenced for other offences, as  

indicated supra.

10. It will be appropriate to refer to the contentions raised before  

this Court by the learned counsel appearing for the respective  

accused persons.   The contentions are:

i. The crucial witnesses of the prosecution, particularly PW8,  

Binode Mallick, PW17, Amal Ray and PW19, Kali Das have  

not named accused Shyamal Ghosh.  Besides, these  

witnesses are not reliable and their statements could not  

form the basis of conviction of the accused persons.  In  

fact, PW17, Amal Ray is a tutored witness as he was in  

police custody for three days before his statement was  

recorded.

ii. The present case being a case of circumstantial evidence  

does not establish the complete chain of events so as to  

substantiate the conviction of the accused.

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iii. PW9, Haru Das, has not named any of the accused and the  

disposal of the dead body which is a material circumstance  

has not been proved in accordance with law and, therefore,  

the conviction of the accused persons is ill-founded.

iv. Accused Shyamal Ghosh was not identified in the test  

identification parade and only accused Satyajit Das @  

Sadhu’s identity could be established.  As such, Shyamal  

Ghosh is not even proved to be connected with the  

commission of the crime.  

v. The driver of the Maruti Van, Manik Das was never  

produced before the Court for cross-examination and,  

therefore, statement under Section 164 of the CrPC of the  

said witness is inconsequential.  

vi. The evidence against the accused is very weak and nothing  

has been recovered from the accused Shyamal Ghosh.  

Since no specific role is attributable to Shyamal and even  

to other accused persons, the conviction under Section 302  

read with Section 34 IPC is not sustainable, particularly  

against accused Shyamal.

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vii. There has been considerable delay, varying from 3 days to  

20 days, in recording the statement of the prosecution  

witnesses and, as such, the possibility of the witnesses not  

speaking the truth cannot be ruled out.  These witnesses  

were informed about what statement to make prior to  

recording of their respective statements.

viii. PW8, Binode Mallick and PW19, Kali Das cannot be  

believed as they are chance witnesses.  Statement of PW8  

was recorded after a delay of 21 days.  He did not disclose  

the name of anyone.

ix. Conduct of the prosecution witnesses including the family  

members of the deceased is abnormal.  No Police report was  

lodged despite a specific case of the prosecution that the  

accused persons had come to the house of the deceased on  

a number of occasions for demanding money and had even  

threatened to murder the deceased.

x. The fact that the prosecution has failed to establish the  

time of death of the deceased would lead to one irresistible  

conclusion that the prosecution has not been able to  

establish its case beyond reasonable doubt.   

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xi. The statement of the accused under Section 313 of the  

CrPC cannot be used against the accused.  Reliance by the  

courts below upon such statement is, therefore, improper  

and illegal.

xii. The recoveries effected from the accused persons, if any,  

including even that from Manoranjan Debath @ Behari, are  

contrary to law and are, therefore, inadmissible.  In fact,  

the seizure memos were got signed on blank papers.   

xiii. There is no common intention and participation by all the  

accused persons.  Resultantly, the ingredients of Section 34  

IPC are not satisfied.  

11. While collectively responding to the above arguments raised  

on behalf of the different accused persons, the learned counsel  

appearing for the State contended that there existed a clear  

motive for committing the crime, i.e., demand of money.   

12. The present case is not a case of circumstantial evidence  

simpliciter.  According to the case of the prosecution, there are  

eye-witnesses to different events that had taken place.  These  

witnesses are reliable and trustworthy.  They are neither tutored  

nor stalked or interested witnesses.  The background of the  

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accused persons, their conduct in absconding immediately after  

the occurrence and statement of the accused under Section 313  

CrPC fully support the case of the prosecution.  Even if some  

witnesses had turned hostile or there existed certain minor  

defects in the investigation, the accused persons cannot derive  

any advantage therefrom.  According to the learned counsel,  

defective investigation normally would not prove fatal to the case  

of the prosecution and even delay in examination of witnesses per  

se would not render statement of a witness unreliable.  Once the  

entire prosecution evidence is cumulatively examined, the  

ingredients of Section 34 IPC are fully satisfied.

Prosecution     Evidence   

13. Before we proceed to dwell upon the merits or otherwise of  

the contentions raised before us, it will be necessary for the Court  

to examine the entire prosecution evidence at a glance.

14. In the present case, the investigative machinery was set into  

motion by two different facts.  Firstly, Exhibit 15, which is the  

missing diary report lodged by the wife of the deceased Lily  

Bhattacharjee PW4, and brother of the deceased Arindam  

Bhattacharjee, PW6 on 30th September, 2003 and secondly, the  

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FIR, Ext. 12, lodged by PW15, Apu @ Sukalyan Mukherjee on 1st  

October, 2003.  No action appears to have been taken on the  

former while the Investigating Officer commenced his  

investigation on the basis of the latter.   

According to PW15, on 30th September, 2003 at about 10.00  

p.m. when he went to the Electric Tower situated at Dangla Disla  

by the side of Barrackpore Dum Dum Express, Patulia Barabagan  

in front of garden of Tapan Santra he noticed two bags containing  

different parts of a human dead body upon which he informed the  

police and lodged a complaint at Khardah Police Station.  One  

Indrajit Sen had written the complaint, Exhibit 10, which bore  

the signatures of PW15 at Exhibit 10/1.  If one looks at the  

content of Ext. 10, per se, it is not evident as to by whom and  

how the offence was committed. It is a settled principle of law that  

FIR is not a substantive piece of evidence.   However, during the  

course of investigation, the story leading to the commission of the  

crime got unfolded and pointed towards the guilt of the accused  

with certainty.   

15. According to PW4 and PW6, the deceased used to earn his  

livelihood through private tuitions and also used to deal in  

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clothing.  The elder brother of the deceased was employed in a  

private firm and both of them had built six shop rooms on their  

own land in front of the house where they were residing, for the  

purpose of letting out.  Particularly according to PW4, Uttam Das,  

Mou @ Dipak Das, Chhotka @ Panchanan Tarafdar had  

demanded Rs.40,000/- from her husband towards ‘Mastani  

Salami’.  The deceased had expressed his inability to pay the said  

amount.  Thereafter, Uttam Das, Mou and Chotka had called the  

deceased to the club premises of West Bengal Bayan Samiti.  The  

deceased went there and agreed to pay a sum of Rs.2,000/-  

which was not accepted by the accused and they threatened the  

deceased with dire consequences, if their demand of Rs.40,000/-  

was not satisfied.  Uttam Das, Panchanan @ Chotka, Ganesh  

Sadhu, Shyamal Ghosh, Dipak Das Chor Bishu, Manoranjan  

came to the house of the deceased two or three times and  

threatened even her mother-in-law, the deceased and his brother  

with dire consequences if the demand was not fulfilled.  

According to this witness, on 27th September, 2003, Uttam Das  

along with his associates had come to their house and extended a  

similar threat.  They informed about this incident to political  

leaders, party officers and to the people and were assured of  

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proper help by them.  On 29th of September, 2003 at about  

9.p.m., the deceased went to the house of Chandan Dey at Ghola  

Gouranganagar by an Avon cycle to collect money in connection  

with his business.  He did not return at night.  Therefore, they  

went to Chandan’s house on the next morning and came to know  

that the deceased had come there in the night and after collecting  

money, he had returned therefrom on that very day.  This  

resulted in lodging of the afore-noted missing diary report at the  

Ghola Police Station by PW6.  On 1st October, 2003, PW4 and  

PW6 both were called to the Police Station to identify the dead  

body which, as noted above, had been recovered as per the  

statement of PW15.  It may be noticed that according to PW4 the  

deceased was wearing four rings, HMT watch and was carrying  

cash and other papers with him on the night of 29th September,  

2003.  After identifying the body at the Police Station, it was clear  

that the accused persons had, after murdering the deceased, cut  

the body of the deceased into pieces and packed the same in  

gunny bags with an intention to destroy the evidence.  PW4 and  

PW6 both identified the apparels of the deceased as well as the  

accused persons in Court.  PW4 also stated that she had  

identified the accused persons even at the Police Station.

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16. Now, we have to examine the prosecution evidence as to the  

manner in which the occurrence took place and the statements of  

the witnesses that are relevant for that purpose.  PW8, Binode  

Mallick, is stated to be an eye-witness to the assault caused by  

the accused upon the deceased.  This witness stated that at the  

relevant time he was running a tea stall near Sandhya Cinema  

Hall at Khardah and also supplied biscuits to the shops at  

Panchanantala Market and Bhanur More.  On 29th September,  

2003 at about 12.00 a.m in the night, he was returning to his  

home from Panchanan Tala, after making tagada.  When he  

reached near Goshala Field he saw that Uttam, Chotka, Mou,  

Chorbisu, Sadhu and Ganesh were assaulting a fat person, whom  

he knew as Archideb Bhattacharjee, by strangulating him with a  

gumcha and were taking the deceased towards Goshala Field.  He  

asked them the reason for the same and they told him to leave  

the place as it was their internal matter.  The deceased was  

saying ‘save me save me’.  PW8 then left that place.  After two  

days he came to know that the said person had been murdered  

and his body had been cut into pieces and was left near the  

Kalyani Road Highway.  The witness identified the accused  

persons as the ones who were doing the mischief on that night.  

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In his cross-examination, he clearly denied the suggestion that he  

was deposing falsely or that he had any friendship or intimacy  

with the accused persons.  The witness also stated that he did  

not know the name of the deceased prior to the date of  

occurrence and, in fact, he came to know of the same from the  

television after two days of the incident.  In his cross-

examination, he also stated that about 10.45 p.m., he had  

reached Bhanur More and within 5-10 minutes, he reached  

Panchanan Tala Market and had spent nearly an hour at  

Panchanan Tala Market for collecting money from the said shop  

owners and after getting payment he started for his home.

17. PW 17, Amal Ray, is another witness to the altercation that  

took place between the deceased and Uttam Das and his  

associates including Shyamal, Sadhu, Bihari, Ganesh,  

Manoranjan, Mou.  According to this witness, he had seen the  

altercation between them.  When he was watching the incident,  

he was asked to leave the place by the accused persons, which he  

did and thereafter on the next day, he heard about the death of  

Archideb Bhattacharjee.  His statement was recorded by the  

Police three days after the incident.  This witness also identified  

the accused in the Court.  In his cross-examination, he  

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specifically denied the suggestion that he had not witnessed the  

incident in question.   

18. The next witness whose statement has a direct bearing on  

this aspect is PW19, Kali Das, who is a resident of Nandan  

Kanan.  This witness stated before the Court that on 29th  

September, 2003 at about 11.30 p.m. while he was returning  

from Rashmoni More, he found that a Jhamela was going on near  

Battalla of Nandan Kanan in between Archided and Uttam,  

Panchanan, Bisu, Bihari, Chotka, Mou and scuffling was going on  

between them.  Uttam and Bishu threatened him, therefore, he  

left the place.  Two days after the incident, he learnt about the  

recovery of body parts of Archideb Bhattacharjee.  He also  

identified all the accused in the Court.  It needs to be noticed that  

according to this witness, all the persons whom he had seen on  

that night were present in the Court and he identified them.   

19. In his statement, he had not specifically given the name of  

Shyamal Ghosh and Ganesh.  In his cross-examination, he  

admitted that he was taken into police custody at about 10 a.m.  

on the next date and was released by the Police after four days.  

He admitted that he did not give the names of the accused  

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persons’  father to the police.  He further stated that he had not  

gone to the Police Station on 29th September, 2003 to report  

about the Jhamela.  Moreover, the Investigating Officer in his  

statement as PW28 had stated that on 1st October, 2003, he had  

examined Arindam Bhattacharjee at Police Station and he had  

also examined various relations of the deceased.  He denied that  

Amal Ray, PW17 was in custody.  In fact, according to him when  

he was going on his way to meet Amal Ray, he had the occasion  

to meet him and had examined him but did not bring him to the  

Police Station.

20. This is the direct evidence in relation to the altercation  

(Jhamela) between the accused and the deceased and the  

subsequent strangulation of the deceased. The necessary  

inference that follows is that on the day of the incident, the  

deceased was killed and his body was disposed of, as stated by  

the prosecution witness noted above, by cutting the same into  

pieces, putting it in gunny bags and abandoning these bags at a  

deserted place.  

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21. The next circumstance in the chain of events is the evidence  

relating to dismembering of the corpse and its disposal by the  

accused persons.  Let us examine that evidence now.

22. PW7, Prakash Chowdhury, is a witness to this incident.  

According to him, on 30th September, 2003, at about 9.00 p.m. he  

was returning along Goshala field Bhanur More after making  

tagada in connection with his business.  While returning, he  

found Uttam and Mou standing by the side of a Maruti Van and  

then Sadhu, Chotka, Chorbisu, Shyamal and Manoranjan were  

taking inside the said steel coloured Maruti Van, parts of human  

dead body contained in gunny bags.  He identified the accused  

persons in the court.  He further stated that his statement was  

recorded by the Police, 20 to 22 days after the date of the  

incident.  In his cross examination, certain doubts were created  

about the manner in which he was conducting his business, i.e.,  

sale and distribution of electric bulbs.

23. PW9, Haru Das, is a rickshaw puller and he parks his  

rickshaw at the Rickshaw stand at Bhanuthakures More.  

According to him, two days prior to the day of Durga Pooja nearly  

two years back, when he was sitting at the rickshaw stand, he  

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saw that a steel coloured Maruti Van stopped near Goshala field  

and four-five bags containing parts of a human body were being  

loaded in the Maruti Van from the side of Goshala field by  

accused Uttam, Mou, Chotka, Bisu, Ganesh and Bihari.  All the  

accused persons who were present in the Court were identified by  

this witness.  According to this witness, the accused persons  

used to travel in his rickshaw and paid the exact fair.  After  

putting the body into the van, the van went away towards  

Rashmoni More.  The witness specifically stated that  

subsequently, he was threatened by Uttam Das and his  

associates by saying that if he disclosed anything to anybody, his  

family would be destroyed.  This witness was subjected to a  

lengthy cross-examination but nothing material came out in the  

cross examination.

24. PW-11, Someraw Orang is another rickshaw puller.   He  

stated that he along with Tarapada Sahadeb and Haru was at the  

Rickshaw stand of Bhanuthakur More.   According to him, a  

Maruti car had stopped there and Uttam and Mou were standing  

by the side of the car and Chotka, Bisu, Manoranjan and  

Ganesh, were loading the bags containing the bloody parts of  

human body into the said car from Goshala field.   Thereafter,  

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the car went towards Rashmoni More with the accused persons.  

He identified all the accused persons present in the Court.   He  

stated that he knew the accused persons for long.   He came to  

know of the murder 20-22 days after the date of incident.   In his  

cross-examination, he stated that he could not tell the number of  

the Maruti car and he had not seen that car again.   He denied  

that he had been tutored by the Police and he was making the  

statement under the influence of the police.   He admitted that he  

carried liquor in his rickshaw, as a government liquor shop was  

situated at Sodhpur and he went there, and sometimes he also  

drank liquor.

25. According to the prosecution, the statements of these  

witnesses completely establish that the deceased was last seen  

with the accused and they were responsible for assaulting and  

strangulating him and they were also witnessed loading the parts  

of the human dead body into the Maruti van.   Resultantly, as  

per the prosecution, both the vital circumstances i.e. commission  

of murder as well as disposal of the body of the deceased have  

been proved.

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26. PW-2 Jhantu Dey, the brother-in-law of the deceased also  

appeared as a witness and stated that his brother-in-law had  

built six shop rooms on their land which was near to his house.  

On 15th August, 2003, Uttam, Manoranjan, Ganesh Dipak Das,  

Shyamal, Chotka, Bisu and Sadhu demanded Rs. 40,000/- from  

the deceased but the deceased refused.  Then Uttam threatened  

that if the said money was not paid he would not allow Archideb  

to enjoy and use the said property.   PW-2 is also a witness to the  

recovery of the chopper which was recovered on the statement of  

accused Bishu who brought out the chopper from the bush in the  

field and admitted that they had cut the body of the deceased  

with the chopper.  PW-2 proved his signatures on the Seizure List  

Ext. 1/1 and also identified in the Court the persons who had  

threatened the deceased.   

27. PW1 Sunil Chakraborty and PW3 Mritunjoy Chanda were  

also witnesses to the recovery of the Chopper and the  

corresponding seizure memo, Exhibit 1/3.  PW1 had signed the  

seizure memo and admitted his signatures as Exhibit 1.  The  

signatures of PW3 were admitted by him at Exhibit 1/2.   Both  

these witnesses identified the accused persons present in the  

Court.   The Maruti Van, Exhibit 13/2 was recovered in presence  

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of PW23, PW24, PW25 and PW26.   Further, the Avon cycle was  

recovered in presence of PW21 and PW22.  PW21 stated that a  

cycle was seized from a place near Agarpara Railway Station  

under the seizure list and it was recovered at the instance of  

three persons who led the police to the place of recovery.  He  

admitted his signatures as Exhibit 4/1.  The cycle was exhibited  

as Mat. Exhibit II.  The signatures on the seizure memo attached  

to the cycle were exhibited as Exhibit 5/1.   

28. These are the recoveries of the weapon of offence as well as  

the vehicle which was used by the accused persons for carrying  

the mutilated body parts of the deceased person.    Further, the  

recovery of the cycle that was owned by the deceased provides a  

definite link as it was recovered in furtherance to the statement  

of the accused, namely, Uttam Das, Dipak Das and Manoranjan  

Debnath.  The recoveries affected by the Investigating Officer,  

PW28 can hardly be questioned in fact and in law.   

29. Now, let us examine the evidence of the doctor who  

conducted the post mortem on the body of the deceased.  Dr.  

Jnanprokash Bandhopadhyay was examined as PW16.  

According to this witness, he was the medical officer attached to  

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R.G. Kar Medical College and Hospital.  On 1st October, 2003, he  

was posted at Barrackpore Police base hospital.   He performed  

post mortem on the dead body of one Archideb Bhattacharjee, as  

identified by the Constable who had brought the body of the  

deceased.  In fact, some parts of the human body had been sent  

for post mortem.  He examined the injuries inflicted upon the  

deceased’s body and connected each injury to the organ that had  

been severed from the body.  He opined that all the body parts  

were of a single person.  The injuries showed evidence of ante  

mortem vital reaction.  The cause of death was due to effect of  

strangulation by ligature.  He prepared the post-mortem report  

as Exhibit 11 with his signature as Exhibit 11/1.  It will be  

useful to refer to certain part of the statement of this witness that  

reads as under :

“On that date I held post-mortem on the  dead body of one Archideb Bhattacharjee  identified by constable No.4260 Brojogopal  Ghosh in connection with Khardah P.S. U.D.  Case No.89 dated 01.01.2003 and Khardah  P.S. Case No.332 under Section 302/201/34  Indian Penal Code dated 01.10.2003.  Actually following parts of the dead body  were sent for post-mortem.  1. One  decapitated head. 2. One beheaded body  with P.M. amputation of both arms, left leg  from hip and right leg from knew. 3. One left  arm.  4. One right arm.  5. One left leg from  

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knew.  6. One right leg from knew 7. One left  thigh, all parts were arranged in anatomical  order.  The body parts were in state of  moderate decompositions with bloating body  feature.  On examination I found flowing  post-mortem injuries.

1. Incised chop would (I.C.W) placed  transversely over neck adjacent to hiad.  2. Winch below symphysis menti and  along with nape of the neck at the level  between c.2 and c-3 vertebrae measuring  6.8” x 6.3” x through and through all the  structure of the neck.  2. I.C.W., placed  over neck adjacent to 4.4”  above sterna  notch placed transversely at the (torn)  between C-2 and C-3 vertgorae measuring  6.8” x 6.3” x through and through all the  structure of the neck.

Injury No.1 and 2 fitted anatomically and  snugly.  3. I.C.W. 6.2”  x 4.3”  x 2.2 all the  structures and shoulder joint cavity over  right shoulder.  4.  I.C.W. 6.2”  X 4.7”  X  through and through all the structures and  shoulder joint cavity over upper end of right  arm.

Injury No. 3 and 4 fitted anatomically and  snugly.  5. I.C.W., 5.9”  X 4.7”  through and  through all the structures all the shoulder  joint cavity over left shoulder.  No.6 I.C.W.  5.8”  X 4.6”  X through and through all the  structures and shoulder joint cavity over  upper and of left arum.

Injury No.5 and 6 filled anatomically and  snugly.  No.7 I.C.W. over left hip 8.5 “8”  X  through and through all the structure and  left hop joint cavity.  8. I.C.W. 8.4”  X 8”  X  through and through all the structure and  left hip joint cavity over upper and of left  thigh.  Injury No.7 an 8 fitted anatomically  

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and snugly.  9.  I.C.W. left knew joint  towards thigh 5.8”  X 5.5”  X through and  through all the structure and left knee joint  cavity10.  I.C.W. left knee joint towards leg  5.8”  X 5.5”  X through and through all the  structure and left knee joint cavity.  Injury  No.9 and 10 fitted anatomically and snugly.  11. I.C.W. right knee towards thigh 5.6”  X  5.5” X through and through all the structure  and right knee joint cavity.  12.  I.C.W. right  knee towards leg 5.6” X 5.5” X through and  through all the structure and right knee joint  cavity.  12.  Injury No.11 and 12 fitted  anatomically and snugly.  N 13. Incised  wound 3” X 0.8” X muscle over right side of  check and lower lip.  No.14. I.C.W. 3.5”  X  0.7” X muscle placed transversely over right  side of back of knee at the level of tip of right  mastoid process.  15. Lacerated wound 3.” X  1.2”  X muscle over left 4 and 5 intercostals  space 5.6”  from interior midland.  All the  injuries mentioned should no evidence of  Ante mortem vital reaction. All the body  parts were of a single persons.  Ante mortem  injury No.1 one continuous ligature one (LM)  12”  X 1.4”  completely encircling the neck  was placed transversely low down around  the neck adjacent to the body 1.6”  above  sterna notch and 1.8” above tip of C-7 spinal  process.  The area over the LM was less  decomposed then the rest of the body and  skin over the L.M. was brownish.  On  dissection extensive extra vacation of blood  is noted in the S.C. tissue and muscle of  neck.  Bruising was also noted in and  around the trached cartilages with fracture  and displacement of thyroid cartilages and  tracheal rings.  No.2. Abrasion 1.5”  X 0.8”  over left malar prominent No.4 Abrasion over  right anterion superior iliac spine measuring  0.8”  X 0.6”.  No.5 Bruise 4.8”  X 2.5”  over  back of left arm 2.5”  above left elbow joint.  

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6. Bruise 2.6” X 2” over ulnar aspect of righ  wrist.  7. Haematoma scalp 3.5”  X 2”  X  appromie 0.2” over left fronto parietal region  the 1.6”  from midline.  The injures showed  evidence of ante mortem vital reaction.

In my opinion death was due to the effects of  strangulation by ligature, as noted above –  ante mortem and homicidal in nature.

This is the report of post-mortem prepared  by me with my handwriting.  It bears my  signature and seal.  This report of post- mortem is marked as Ext.11 the signature is  marked s Ext. 11/1.

The post-mortem injuries mentioned above  may be caused by this type of moderately  heavy sharp cutting.”

30. The Investigating Officer was examined as PW28.  Upon  

receiving the information from PW15, he was entrusted with the  

investigation of the case.  According to this witness, when he  

reached the spot, he found that a beheaded dead body whose  

hands and legs were separated, was lying by the left side of the  

Barrackpore Dum Dum Highway.  He conducted the inquest at  

the spot and prepared the Inquest Report Exhibit 3/4. He seized  

the gunny bags containing mutilated parts of the body of the  

deceased.  He also recovered an empty blood stained gumcha and  

other articles vide Exhibit 16.  On 1st October, 2003, he  

conducted a raid in the area of Nandan Kanan in search of  

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accused Uttam Das, Mou and Manoranjan Debnath but could  

not apprehend them.  He recorded the statements of various  

witnesses.  The mutilated body parts were sent to the Police  

hospital.  On 11th October, 2003, he along with the force started  

for Delhi with production warrant and thereupon he arrested  

three accused.  He recovered the Avon bicycle, while the Maruti  

Van was recovered by SI, Anjan De, PW26, who had taken up  

investigation of the case under instructions of I.C. Khardah,  

during temporary absence of PW28.  Thereafter, according to this  

witness, he held raids in search of the associate accused but they  

could not be traced. PW28 prayed for issuance of WA and WPA  

against Chotka @ Panchanan Tarafdar, Chor Bisu @ Bisu Bisu @  

Datta  @ Das, Sadhu @ Satyajit Das, Shyamal Ghosh and  

Ganesh Das.  The same were allowed.  On 9th November, 2003,  

he held raid at Nandan Kanan and surrounding area but could  

not trace the absconding accused.  On 21st November, 2003, he  

apprehended accused Shyamal Ghosh and Sadhu @ Satyajit Das  

from Sodhpur.  He also took into custody photographs along with  

negatives thereof from photographer Ashok Sen on 7th October,  

2003 and prepared seizure list marked as Exhibit 7/1.  

Thereafter he filed the charge sheet.  

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31. Another witness of some significance is PW10, Chota Orang  

who stated that about one and a half years back, a part of a dead  

body severed from its head, hands and legs was left in front of his  

house near Kalyani Highway Road by someone.  The Police had  

come to the place and prepared a report.  He had put his  

signatures on the said report which he duly accepted in Court as  

Exhibit 3/1.

32. This is the evidence that completes the chain of events and  

establishes the case of the prosecution beyond any reasonable  

doubt.  The facts, right from the departure of the deceased from  

his house to the place of Chandan Dey to recover money upto the  

recovery of mutilated body of the deceased, have been proved by  

different witnesses, including some eye-witnesses.

33. It was contended that some of the witnesses had turned  

hostile and have not supported the case of the prosecution. In  

this regard, reference has been made to PW13 and PW23.   PW13  

admitted that he was a rickshaw puller of rickshaw No. 4. He  

also stated that he was not examined by the police. It was at that  

stage that the learned prosecutor sought permission of the Court  

to declare him hostile, which leave was granted by the Court.  

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This witness stated that there were 10 rikshaw pullers at Nandan  

Kanan and he used to park his rikshaw from 7.00 a.m. to 10.00  

a.m. at that stand, while in the afternoon, he used to park his  

rikshaw at the Sodhpur Railway Station.   He denied having seen  

the accused persons loading the gunny bags into the Maruti Van  

and also receded completely from his statement made under  

Section 161 of the CrPC.  The other witness is PW23 who was a  

witness to the recovery of the Maruti Van.  According to this  

witness, the Maruti Van was parked in his parking lot.  However,  

on 30th November, 2003 Manik Das had taken out the vehicle  

from the parking and again returned at mid night.  With regard  

to his signature on the seizure memo which he accepted as  

Exhibit 13, he took up the plea that he was made to sign blank  

papers.   

The mere fact that these two witnesses had turned hostile  

would not affect the case of the prosecution adversely.  Firstly, it  

is for the reason that the facts that these witnesses were to prove  

already stand fully proved by other prosecution witnesses and  

those witnesses have not turned hostile, instead they have fully  

supported the case of the prosecution.  As per the version of the  

prosecution, PW23 was witness to the recovery of the Maruti Van  

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along with PW24, PW25 and PW26.  All those witnesses have  

proved the said recovery in accordance with law.  They have  

clearly stated that it was upon the statement of Manik Das that  

the vehicle had been recovered.  Other witnesses have proved  

that the said vehicle was used for carrying the gunny bags  

containing the mutilated parts of the dead body of the deceased.  

Firstly, PW13 is a witness who was at the railway station  

rickshaw stand along with other two witnesses namely PW9 and  

PW11 who have fully proved the fact as eye-witnesses to the  

loading of the gunny bags into the Maruti van.  Secondly, even  

the version given by PW13 and PW23 partially supports the case  

of the prosecution, though in bits and pieces.  For example,  

PW23 has stated that the driver of the Maruti Van was Manik  

Das and also that he had taken out the vehicle from the parking  

lot at about 9.30 p.m. on the day of the incident and had brought  

it back after mid-night.  He also stated that this car was being  

driven by Manik Das.  Similarly, PW13 also admitted that other  

rickshaws were standing at the stand.   This was the place where  

PW9 and PW11 had seen the loading of the gunny bags into the  

Maruti Van.  In other words, even the statements of witnesses  

PW13 and PW23, who had turned hostile, have partially  

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supported the case of the prosecution.  It is a settled principle of  

law that statement of a hostile witness can also be relied upon by  

the Court to the extent it supports the case of the prosecution.  

Reference in this regard can be made to the case of Govindaraju  

@ Govinda v. State by Sriramapuram P.S. & Anr. [(2012) 4 SCC  

722].

34. Then, it was argued that there are certain discrepancies and  

contradictions in the statement of the prosecution witnesses in  

as much as these witnesses have given different timing as to  

when they had seen the scuffling and strangulation of the  

deceased by the accused.  It is true that there is some variation  

in the timing given by PW8, PW17 and PW19.  Similarly, there is  

some variation in the statement of PW7, PW9 and PW11.  Certain  

variations are also pointed out in the statements of PW2, PW4  

and PW6 as to the motive of the accused for commission of the  

crime.  Undoubtedly, some minor discrepancies or variations are  

traceable in the statements of these witnesses.  But what the  

Court has to see is whether these variations are material and  

affect the case of the prosecution substantially.  Every variation  

may not be enough to adversely affect the case of the  

prosecution.  The variations pointed out as regards the time of  

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commission of the crime are quite possible in the facts of the  

present case.  Firstly, these witnesses are rickshaw pullers or  

illiterate or not highly educated persons whose statements had  

been recorded by the Police.  Their statements in the Court were  

recorded after more than two years from the date of the incident.  

It will be unreasonable to attach motive to the witnesses or term  

the variations of 15-20 minutes in the timing of a particular  

event, as a material contradiction.  It probably may not even be  

expected of these witnesses to state these events with the  

relevant timing with great exactitude, in view of the attendant  

circumstances and the manner in which the incident took place.  

To illustrate the irrelevancy of these so called variations or  

contradictions, one can deal with the statements of PW2, PW4  

and PW6.  PW4 and PW6 have stated that the deceased had  

constructed shops along with his brother for the purpose of  

letting out and it was thereupon that the accused persons started  

demanding a sum of Rs.40,000/- from the deceased and had  

threatened him of dire consequences, if their demand was not  

satisfied.  PW2 has made a similar statement.  However, he has  

stated that Uttam Das and the accused persons had threatened  

the deceased that if the said money was not paid, they would not  

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allow the deceased to enjoy and use the said shops built by him.  

This can hardly be stated to be a contradiction much less a  

material contradiction.  According to the witnesses, two kinds of  

dire consequences were stated to follow, if the demand for  

payment of money made by the accused was not satisfied.  

According to PW4 and PW6, they had threatened to kill the  

deceased while according to PW2, the accused had threatened  

that they would not permit the accused to enjoy the said  

property.  Statements of all these witnesses clearly show one  

motive, i.e., illegal demand of money coupled with the warning of  

dire consequences to the deceased in case of default.  In our  

view, this is not a contradiction but are statements made bona  

fide with reference to the conduct of the accused in relation to  

the property built by the deceased and his brother.  It is a settled  

principle of law that the Court should examine the statement of a  

witness in its entirety and read the said statement along with the  

statement of other witnesses in order to arrive at a rational  

conclusion.  No statement of a witness can be read in part  

and/or in isolation.  We are unable to see any material or serious  

contradiction in the statement of these witnesses which may give  

any advantage to the accused.   

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35. The learned counsel appearing for the appellants contended  

that PW2, PW4 and PW6 are interested witnesses as they are  

close relations of the deceased person.  Further it is contended  

that the statements of PW8, PW17 and PW19 had been recorded  

after considerable delay, varying from 3 to 22 days and for these  

reasons the case of the prosecution suffers from patent lacuna  

and defects.  This evidence, therefore, could not be taken into  

consideration by the Court to convict the accused.  On the  

contrary, the accused are entitled to acquittal for these reasons.  

Reliance has been placed upon State of Orissa v. Brahmananda  

Nanda [(1976) 4 SCC 288] and Maruti Rama Naik v. State of  

Maharashtra [(2003) 10 SCC 670].   

36. On the contra, the submission on behalf of the State is that  

the delay has been explained and though the Investigating Officer  

was cross-examined at length, not even a suggestion was put to  

him as to the reason for such delay and, thus, the accused  

cannot take any benefit thereof at this stage.  Reliance in this  

regard on behalf of the State is placed on Brathi alias Sukhdev  

Singh v. State of Punjab [(1991) 1 SCC 519] Banti alias Guddu v.  

State of M.P. [(2004) 1 SCC 414] and State of U.P. v. Satish [(2005)  

3 SCC 114].   

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37. These are the issues which are no more res integra.  The  

consistent view of this Court has been that if the explanation  

offered for the delayed examination of a particular witness is  

plausible and acceptable and the Court accepts the same as  

plausible, there is no reason to interfere with the conclusion  

arrived at by the Courts.  This is the view expressed in the case of  

Banti (supra).  Furthermore, this Court has also taken the view  

that no doubt when the Court has to appreciate evidence given  

by the witnesses who are closely related to the deceased, it has to  

be very careful in evaluating such evidence but the mechanical  

rejection of the evidence on the sole ground that it is that of an  

interested witness would inevitably relate to failure of justice  

[Brathi (supra)].  In the case of Satish (supra), this Court further  

held that the explanation offered by Investigating Officer on being  

questioned on the aspect of delayed examination by the accused  

has to be tested by the Court on the touchstone of credibility. It  

may not have any effect on the credibility of the prosecution  

evidence tendered by other witnesses.   

38. The delay in examination of witnesses is a variable factor.  It  

would depend upon a number of circumstances.  For example,  

non-availability of witnesses, the Investigating Officer being pre-

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occupied in serious matters, the Investigating Officer spending  

his time in arresting the accused who are absconding, being  

occupied in other spheres of investigation of the same case which  

may require his attention urgently and importantly, etc.  In the  

present case, it has come in evidence that the accused persons  

were absconding and the Investigating Officer had to make  

serious effort and even go to various places for arresting the  

accused, including coming from West Bengal to Delhi.  The  

Investigating Officer has specifically stated, that too voluntarily,  

that he had attempted raiding the houses of the accused even  

after cornering the area, but of no avail.  He had ensured that the  

mutilated body parts of the deceased reached the hospital and  

also effected recovery of various items at the behest of the  

arrested accused.  Furthermore, the witnesses whose statements  

were recorded themselves belonged to the poor strata, who must  

be moving from one place to another to earn their livelihood.  The  

statement of the available witnesses like PW2, PW4, PW6, and  

the doctor, PW16, another material witness, had been recorded at  

the earliest. The Investigating Officer recorded the statements of  

nearly 28 witnesses.  Some delay was bound to occur in  

recording the statements of the witnesses whose names came to  

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light after certain investigation had been carried out by the  

Investigating Officer.  In the present case, the examination of the  

interested witnesses was inevitable.  They were the persons who  

had knowledge of the threat that was being extended to the  

deceased by the accused persons.  Unless their statements were  

recorded, the investigating officer could not have proceeded with  

the investigation any further, particularly keeping the facts of the  

present case in mind.  Merely because three witnesses were  

related to the deceased, the other witnesses, not similarly placed,  

would not attract any suspicion of the court on the credibility  

and worthiness of their statements.

39. Some emphasis has been placed by the learned counsel  

appearing for the appellants upon some patent defects in the  

prosecution case and the abnormal conduct of the prosecution  

witnesses.  According to the counsel, it is very unnatural that  

related witnesses like PW2, PW4 and PW6 had not informed the  

police when they lodged the missing diary report with the Police  

Station that there was demand for money by the accused and  

that they had threatened the deceased with dire consequences if  

that demand was not satisfied.  Furthermore, it is pointed out  

that nothing was sent by the Investigating Officer to the Forensic  

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Science Laboratory (FSL) to provide any scientific link to the  

commission of the offence or corroboration of the case of the  

prosecution.  The contention is that these are material defects  

and should normally result in acquittal of the accused.  

40. We are not impressed by this contention of the learned  

counsel appearing for the appellants.  We have already noticed  

above that the question of disbelieving the interested witnesses  

(family members of the deceased) does not arise.  Their  

statements are reliable and trustworthy.  The fact that they did  

not inform the Police while lodging the missing diary report about  

the illegal demand for money by the accused persons and that  

the accused had also threatened the deceased with dire  

consequences, is not a material omission.  All the family  

members must have been under great mental stress as their  

husband/brother had not returned home. It is also not factually  

correct to say that nothing of this kind was mentioned by these  

related witnesses to the police at any stage.  The Investigating  

Officer, PW28, had specifically stated in his statement “Jhantu  

Dey stated to me that on 15.8.03 Uttam Das, Dipak Das,  

Manoranjan Debnath, Ganesh, Chotka, Chor Bisu, Shyamal,  

Sadhu, demanded Rs.40,000/- from Archideb Bhattacharjee in  

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his presence”.  Of course, there are certain discrepancies in the  

investigation inasmuch as the Investigating Officer failed to send  

the blood stained gunny bags and other recovered weapons to the  

FSL, to take photographs of the shops in question, prepare the  

site plan thereof, etc.   Every discrepancy in investigation does  

not weigh with the Court to an extent that it necessarily results  

in acquittal of the accused.  These are the discrepancies/lapses  

of immaterial consequence.  In fact, there is no serious dispute in  

the present case to the fact that the deceased had constructed  

shops on his own land.  These shops were not the site of  

occurrence, but merely constituted a relatable fact.  Non-

preparation of the site plan or not sending the gunny bags to the  

FSL cannot be said to be fatal to the case of prosecution in the  

circumstances of the present case.  Of course, it would certainly  

have been better for the prosecution case if such steps were  

taken by the Investigating Officer.  In C. Muniappan v. State of  

Tamil Nadu [(2010) 9 SCC 567], this Court has clearly stated the  

principle that the law on this issue is well settled that the defect  

in the investigation by itself cannot be a ground for acquittal.  If  

primacy is given to such designed or negligent investigations or  

to the omissions or lapses by perfunctory investigation, the faith  

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and confidence of the people in the criminal justice  

administration would be eroded.  Similar view was taken by this  

Court in the case of Sheo Shankar Singh v. State of Jharkhand  

and Another [(2011) 3 SCC 654] wherein the Court held that  

failure of the investigating agency to hold a test identification  

parade does not, in that view, have the effect of weakening the  

evidence of identification in the Court.  As to what should be the  

weight attached to such an identification is a matter which the  

court would determine in the peculiar facts and circumstances of  

each case.  Similarly, failure to make reference to the FSL in the  

circumstances of the case is no more than a deficiency in the  

investigation of the case and such deficiency does not necessarily  

lead to a conclusion that the prosecution case is totally unworthy  

of credit.

41. As we are discussing the conduct of the prosecution  

witnesses, it is important for the Court to notice the conduct of  

the accused also.  The accused persons were absconding  

immediately after the date of the occurrence and could not be  

arrested despite various raids by the police authorities.  The  

Investigating Officer had to go to different places, i.e., Sodhpur  

and Delhi to arrest the accused persons.  It is true that merely  

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being away from his residence having an apprehension of being  

apprehended by the police is not a very unnatural conduct of an  

accused,  so as to be looked upon as absconding per se where the  

court would draw an adverse inference.  Paramjeet Singh v. State  

of Uttarakhand [(2010) 10 SCC 439] is the judgment relied upon  

by the learned counsel appearing for the appellant.  But we  

cannot overlook the fact that the present case is not a case where  

the accused were innocent and had a reasonable excuse for being  

away from their normal place of residence.  In fact, they had left  

the village and were not available for days together.  Absconding  

in such a manner and for such a long period is a relevant  

consideration.  Even if we assume that absconding by itself may  

not be a positive circumstance consistent only with the  

hypothesis of guilt of the accused because it is not unknown that  

even innocent persons may run away for fear of being falsely  

involved in criminal cases, but in the present case, in view of the  

circumstances which we have discussed in this judgment and  

which have been established by the prosecution, it is clear that  

absconding of the accused not only goes with the hypothesis of  

guilt of the accused but also points a definite finger towards  

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them.  This Court in the case of Rabindra Kumar Pal @ Dara  

Singh v. Republic of India [(2011) 2 SCC 490], held as under :

“88. The other circumstance urged by the  prosecution was that A-3 absconded soon  after the incident and avoided arrest and this  abscondence being a conduct under Section  8 of the Evidence Act, 1872 should be taken  into consideration along with other evidence  to prove his guilt. The fact remains that he  was not available for quite some time till he  was arrested which fact has not been  disputed by the defence counsel. We are  satisfied that before accepting the contents  of the two letters and the evidence of PW 23,  the trial Judge afforded him the required  opportunity and followed the procedure  which was rightly accepted by the High  Court.”

42. Then it was also contended that circumstantial evidence is a  

very weak evidence and in the present case, the complete chain  

having not been established, the accused are entitled to  

acquittal.  This argument again does not impress us.  Firstly, we  

have discussed in some details that this is not purely a case of  

circumstantial evidence.  There are eye-witnesses who had seen  

the scuffling between the deceased and the accused and the  

strangulation of the deceased by the accused persons and also  

the loading of the mutilated body parts of the deceased contained  

in gunny bags into Maruti Van.  Evidence establishing the ‘last  

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seen together’  theory and the fact that after altercation and  

strangulation of the deceased which was witnessed by PW8,  

PW17 and PW19, the body of the deceased was recovered in  

pieces in presence of the witnesses, have been fully established.  

To a very limited extent, it is a case of circumstantial evidence  

and the prosecution has proved the complete chain of events.  

The gap between the time when the accused persons were last  

seen with the deceased and the discovery of his mutilated body is  

quite small and the possible inference would be that the accused  

are responsible for commission of the murder of the deceased.  

Once the last seen theory comes into play, the onus was on the  

accused to explain as to what happened to the deceased after  

they were together seen alive.  The accused persons have failed to  

render any reasonable/plausible explanation in this regard.

43. Even in the cases of circumstantial evidence, the Court has  

to take caution that it does not rely upon conjectures or  

suspicion and the same should not be permitted to take the place  

of legal proof.  The circumstances from which the conclusion of  

guilt is to be drawn should in the first instance be fully  

established and all the facts so established should be consistent  

only with the hypothesis of guilt of the accused.  The  

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circumstances should be of a conclusive nature and tendency  

and they should be such as to exclude every hypothesis but the  

one proposed to be proved. {Ref. Mousam Singha Roy and Others  

v. State of W.B. [(2003) 12 SCC 377]].

44. Accused Ganesh, in his statement under Section 313  

Cr.P.C., admitted the fact that he was absconding even till the  

charge-sheet was filed in the Court declaring him absconding  

and thereafter, he surrendered at the Police Station after charges  

were framed.  On a specific question as to what he had to say in  

this regard, except saying that it was correct, he gave no further  

explanation.  This piece of evidence points towards lack of bona  

fides on the part of this accused.  It may also be noticed that all  

the accused only stated that they did not know anything.  

However, they did not dispute the period during which they were  

stated to be absconding.  This again is a circumstance which,  

seen in the light of the prosecution evidence, points towards the  

guilt of the accused.

45. Another argument advanced on behalf of accused Shyamal  

Ghosh is that he was not named in the FIR, was not identified in  

police custody and was also not named by PW8 in his statement.  

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As far as naming Shyamal Ghosh in the FIR is concerned, none  

of the accused was named in the FIR, which was recorded on the  

statement of PW15.  PW15 had only informed about the recovery  

of the gunny bags containing the human body parts.  Thus, it  

was a case of blind murder at that stage and was so registered by  

the police.  Coming to the fact that this accused was not  

specifically named by PW8 in his statement before the Court, we  

may notice that it is true that Shyamal Ghosh was not named by  

the said witness.  PW8 had only named six accused persons but  

it is also to be noted that when he identified the accused persons  

present in the Court, he specifically stated “the persons who were  

doing the mischief in that night are present in Court today  

(identified)”.  PW17 had seen the altercation immediately  

preceding the strangulation of the deceased and he has clearly  

named Shyamal Ghosh in his statement.  Of course, this witness  

also had named six persons and according to this witness, the  

accused persons had asked him to leave the place which he then  

did.  PW19 had also similarly named six persons while not  

specifically naming the accused Shyamal but he also stated in  

his examination, “The persons whom I saw in that night all are  

present in Court today (identified)”.

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46. This clearly shows that all the three eye-witnesses to  

altercation and strangulation named some of the accused  

persons while did not name others specifically.  However, they  

identified all the accused persons in the Court as the persons  

who were present at the time of the mischief, altercation and  

strangulation of the deceased.  This Court in the case of Tika  

Ram v. State of Madhya Pradesh [(2007) 15 SCC 760), while  

rejecting the argument that the name of the accused is not  

mentioned in the FIR held that this would not by itself be  

sufficient to reject the prosecution case as against this accused.  

The court further held that where the prosecution is able to  

establish its case, such omission by itself would not be sufficient  

to give benefit of doubt to the accused.  In the present case, as  

already discussed, the prosecution has been able to establish its  

case beyond reasonable doubt.

47. From the above discussion, it precipitates that the  

discrepancies or the omissions have to be material ones and then  

alone, they may amount to contradiction of some serious  

consequence. Every omission cannot take the place of a  

contradiction in law and therefore, be the foundation for  

doubting the case of the prosecution. Minor contradictions,  

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inconsistencies or embellishments of trivial nature which do not  

affect the core of the prosecution case should not be taken to be  

a ground to reject the prosecution evidence in its entirety.   It is  

only when  such omissions amount to a contradiction creating a  

serious doubt about the truthfulness or creditworthiness of the  

witness and other witnesses also make material improvements or  

contradictions before the court in order to render the evidence  

unacceptable, that the courts may not be in a position to safely  

rely upon such evidence. Serious contradictions and omissions  

which materially affect the case of the prosecution have to be  

understood in clear contra-distinction to mere marginal  

variations in the statement of the witnesses.   The prior may have  

effect in law upon the evidentiary value of the prosecution case;  

however, the latter would not adversely affect the case of the  

prosecution.   Another settled rule of appreciation of evidence as  

already indicated is that the court should not draw any  

conclusion by picking up an isolated portion from the testimony  

of a witness without adverting to the statement as a whole.  

Sometimes it may be feasible that admission of a fact or  

circumstance by the witness is only to clarify his statement or  

what has been placed on record.   Where it is a genuine attempt  

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on the part of a witness to bring correct facts by clarification on  

record, such statement must be seen in a different light to a  

situation where the contradiction is of such a nature that it  

impairs his evidence in its entirety.

48. In terms of the explanation to Section 162 Cr.P.C. which  

deals with an omission to state a fact or circumstance in the  

statement referred to in sub-section (1), such omission may  

amount to contradiction if the same appears to be significant and  

otherwise relevant having regard to the context in which such  

omission occurs and whether there is any omission which  

amounts to contradiction in particular context shall be a  

question of fact. A bare reading of this explanation reveals that if  

a significant omission is made in a statement of a witness under  

Section 161 Cr.P.C., the same may amount to contradiction and  

the question whether it so amounts is a question of fact in each  

case. (Sunil Kumar Sambhudayal Gupta (Dr.) Vs. State of  

Maharashtra [(2010) 13 SCC 657] and Subhash Vs. State of  

Haryana [(2011) 2 SCC 715].

49. The basic element which is unambiguously clear from the  

explanation to Section 162 CrPC is use of the expression ‘may’.  

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To put it aptly, it is not every omission or discrepancy that may  

amount to material contradiction so as to give the accused any  

advantage.   If the legislative intent was to the contra, then the  

legislature would have used the expression ‘shall’ in place of the  

word ‘may’.   The word ‘may’ introduces an element of discretion  

which has to be exercised by the court of competent jurisdiction  

in accordance with law.   Furthermore, whether such omission,  

variation or discrepancy is a material contradiction or not is  

again a question of fact which is to be determined with reference  

to the facts of a given case.   The concept of contradiction in  

evidence under criminal jurisprudence, thus, cannot be stated in  

any absolute terms and has to be construed liberally so as to  

leave desirable discretion with the court to determine whether it  

is a contradiction or material contradiction which renders the  

entire evidence of the witness untrustworthy and affects the case  

of the prosecution materially.

50. Then, it is also contended and of course with some  

vehemence that where the prosecution is relying upon the last  

seen theory, it must essentially establish the time when the  

accused and deceased were last seen together as well as the time  

of the death of the deceased.   If these two aspects are not  

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established, the very application of the ‘last seen theory’ would be  

impermissible and would create a major dent in the case of the  

prosecution.   In support of this contention, reliance is placed  

upon the judgment of this Court in the case of S.K. Yusuf v. State  

of West Bengal [(2011) 11 SCC 754].

51. Application of the ‘last seen theory’ requires a possible link  

between the time when the person was last seen alive and the  

fact of the death of the deceased coming to light.  There should  

be a reasonable proximity of time between these two events. This  

proposition of law does not admit of much excuse but what has  

to be seen is that this principle is to be applied depending upon  

the facts and circumstances of a given case.   This Court in para  

21 of Yusuf’s case (supra) while referring to the case of Mohd.  

Azad @ Samin v. State of West Bengal [(2008) 15 SCC 449] and  

State through Central Bureau of Investigation Vs. Mahender Singh  

Dahiya [(2011) 3 SCC 109], held as under:-

“21. The last seen theory comes into play  where the time gap between the point of time  when the accused and the deceased were  last seen alive and when the deceased is  found dead is so small that possibility of any  person other than the accused being the  author of the crime becomes impossible.  

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(Vide Mohd. Azad v. State of W.B and State v.  Mahender Singh Dahiya)”

52. The reasonableness of the time gap is, therefore, of some  

significance. If the time gap is very large, then it is not only  

difficult but may even not be proper for the court to infer that the  

accused had been last seen alive with the deceased and the  

former, thus, was responsible for commission of the offence.   The  

purpose of applying these principles, while keeping the time  

factor in mind, is to enable the Court to examine that where the  

last seen together and the time when the deceased was found  

dead is short, it inevitably leads to the inference that the accused  

person was responsible for commission of the crime and the onus  

was on him to explain how the death occurred.   

53. In the facts of the present case, the factor of time does not  

play such a significant role because it is a case where there were  

eye-witnesses to the strangulation of the deceased by the  

accused, and therefore, it may not be expected of the prosecution  

to show the time of last seen and death, by leading independent  

evidence.   PW-17 is the witness to the altercation between the  

accused and the deceased. PW-8 is the witness to the  

strangulation of the deceased by the accused persons.   Besides,  

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PW-7, PW-9 and PW-11 are witnesses to the loading of the gunny  

bags containing human body parts in the Maruti Van by the  

accused.  Thus, these facts have been established by  

independent witnesses.  None of these witnesses is a relation  

or a witness inimical towards the accused.   It has come on  

record that the occurrence had taken place on 29th September,  

2003 at midnight.   There may be some variation (5 to 10  

minutes) in the time stated by different witnesses as to when the  

occurrence took place.  From their statements, it is clear that by  

and large, they have given approximately the same time with  

reasonable variation, which is primarily for the reason that the  

accused persons and deceased were seen by the witnesses at  

different places. We have already held that these discrepancies do  

not amount to any material contradiction.   Thus, the time of  

death stands clearly established between 11.30 pm to 12.00 am  

on 29th/30th September, 2003.  Thereafter, it was the act of  

disposal of the body of the deceased which attracts the offence  

under Section 201 IPC.   

54. As far as the death of the deceased is concerned, there was  

hardly any time gap between the two incidents, i.e. the last seen  

alive and the fact of death of the deceased becoming known.   All  

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the events occurred between 11.00 p.m. to 12.00 a.m. at  

midnight of 29th September, 2003. Thus, the contention raised on  

this ground is entirely without any merit.

55. On behalf of accused Shyamal, it was also contended that  

despite the identification parade being held, he was not identified  

by the witnesses and also that the identification parade had been  

held after undue delay and even when details about the incident  

had already been telecasted on the television.   Thus, the Court  

should not rely upon the identification of the accused persons as  

the persons involved in the commission of the crime and they  

should be given the benefit of doubt.

56.  The whole idea of a Test Identification Parade is that  

witnesses who claim to have seen the culprits at the time of  

occurrence are to identify them from the midst of other persons  

without any aid or any other source.  The test is done to check  

upon their veracity. In other words, the main object of holding an  

identification parade, during the investigation stage, is to test the  

memory of the witnesses based upon first impression and also to  

enable the prosecution to decide whether all or any of them could  

be cited as eyewitnesses of the crime.  

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57. It is equally correct that the CrPC does not oblige the  

investigating agency to necessarily hold the Test Identification  

Parade.   Failure to hold the test identification parade while in  

police custody, does not by itself render the evidence of  

identification in court inadmissible or unacceptable.   There have  

been numerous cases where the accused is identified by the  

witnesses in the court for the first time.   One of the views taken  

is that identification in court for the first time alone may not form  

the basis of conviction, but this is not an absolute rule.  The  

purpose of the Test Identification Parade is to test and strengthen  

the trustworthiness of that evidence. It is accordingly considered  

a safe rule of prudence to generally look for corroboration of the  

sworn testimony of the witnesses in court as to the identity of the  

accused who are strangers to them, in the form of earlier  

identification proceedings. This rule of prudence is, however  

subjected to exceptions. Reference can be made to Munshi  

Singh Gautam  v. State of M.P.[(2005) 9 SCC 631], Sheo Shankar  

Singh v State of Jharkhand and Anr. [(2011) 3 SCC 654].

58. Identification Parade is a tool of investigation and is used  

primarily to strengthen the case of the prosecution on the one  

hand and to make doubly sure that persons named accused in  

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the case are actually the culprits.  The Identification Parade  

primarily belongs to the stage of investigation by the police.   The  

fact that a particular witness has been able to identify the  

accused at an identification parade is only a circumstance  

corroborative of the identification in court.   Thus, it is only a  

relevant consideration which may be examined by the court in  

view of other attendant circumstances and corroborative evidence  

with reference to the facts of a given case.    

59. In the present case, certainly Shyamal Ghosh, accused was  

not identified at the time of Test Identification Parade held on 28th  

November, 2003.   However, Sadhu @ Satyajit Das was identified.  

PW-14 is the learned Judicial Magistrate who had recorded the  

statement of Manik Das under Section 164 CrPC as well as held  

the Identification Parade on 28th November, 2003.  Other accused  

were neither subjected to Identification Parade nor could the  

question of identifying them arise.  The mere fact that Shyamal  

Ghosh accused was not identified by Manik Das is not of great  

relevancy in the present case.   Firstly, for the reason that Manik  

Das was never examined as a witness in the court and even his  

statement under Section 164 CrPC has not been relied upon by  

any court while convicting the accused.   Secondly, not only one,  

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but all the witnesses i.e. PW-7, PW-8, PW-9, PW-11, PW-17 and  

PW-19, duly identified the accused in Court and they did so  

without any demur or hesitation.    Manik Das was a person who  

himself was under a threat and was asked to take the gunny bags  

for their disposal near the Barrackpore Dum Dum Highway.  

Thus, we are of the considered view that non-identification of  

Shyamal Ghosh by Manik Das is inconsequential in the present  

case.

60. We may notice at this stage that having returned a finding  

that prosecution has been able to prove its case beyond  

reasonable doubt on the strength of the oral and documentary  

evidence produced by the prosecution, without taking into  

consideration the statement of Manik Das made under Section  

164 CrPC., it is not necessary for us to examine whether the  

statement of Manik Das under Section 164 CrPC is admissible in  

evidence and what its evidentiary value is.   The question of law is  

whether the statement recorded under Section 164 CrPC can be  

relied upon by the prosecution in a given case or not.  We leave  

this question open.

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61. Lastly, it was contended that the provisions of Section 34  

IPC are not attracted in the present case as the prosecution has  

not been able to prove either common intention or participation of  

the accused persons in the commission of the crime.  

Resultantly, they could not have been held guilty of the offence  

under Section 302 read with Section 34 IPC.   Before we discuss  

the evidence relevant to this aspect of the case, let us examine  

the law in relation to ingredients and application of Section 34  

IPC.

62. In a very recent judgment of this court in the case Nand  

Kishore v. State of Madhya Pradesh [(2011) 12 SCC 120], this  

Court discussed the ambit and scope of Section 34 IPC as well as  

its applicability to a given case as under :

“20. A bare reading of this section shows  that the section could be dissected as  follows:

(a) Criminal act is done by several persons;

(b) Such act is done in furtherance of the  common intention of all; and

(c) Each of such persons is liable for that act  in the same manner as if it were done by him  alone.

In other words, these three ingredients would  guide the court in determining whether an  accused is liable to be convicted with the aid  

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of Section 34. While first two are the acts  which are attributable and have to be proved  as actions of the accused, the third is the  consequence. Once the criminal act and  common intention are proved, then by fiction  of law, criminal liability of having done that  act by each person individually would arise.  The criminal act, according to Section 34 IPC  must be done by several persons. The  emphasis in this part of the section is on the  word “done”. It only flows from this that  before a person can be convicted by following  the provisions of Section 34, that person  must have done something along with other  persons. Some individual participation in the  commission of the criminal act would be the  requirement. Every individual member of the  entire group charged with the aid of Section  34 must, therefore, be a participant in the  joint act which is the result of their  combined activity.  

21. Under Section 34, every individual  offender is associated with the criminal act  which constitutes the offence both physically  as well as mentally i.e. he is a participant not  only in what has been described as a  common act but also what is termed as the  common intention and, therefore, in both  these respects his individual role is put into  serious jeopardy although this individual role  might be a part of a common scheme in  which others have also joined him and  played a role that is similar or different. But  referring to the common intention, it needs  to be clarified that the courts must keep in  mind the fine distinction between “common  intention”  on the one hand and “mens rea”  as understood in criminal jurisprudence on  the other. Common intention is not alike or  identical to mens rea. The latter may be  

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coincidental with or collateral to the former  but they are distinct and different.

22. Section 34 also deals with constructive  criminal liability. It provides that where a  criminal act is done by several 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 was done by him  alone. If the common intention leads to the  commission of the criminal offence charged,  each one of the persons sharing the common  intention is constructively liable for the  criminal act done by one of them. (Refer to  Brathi v. State of Punjab.)

23. Another aspect which the court has to  keep in mind while dealing with such cases  is that the common intention or state of  mind and the physical act, both may be  arrived at the spot and essentially may not  be the result of any predetermined plan to  commit such an offence. This will always  depend on the facts and circumstances of  the case, like in the present case Mahavir, all  alone and unarmed went to demand money  from Mahesh but Mahesh, Dinesh and Nand  Kishore got together outside their house and  as is evident from the statements of the  witnesses, they not only became aggressive  but also committed a crime and went to the  extent of stabbing him over and over again at  most vital parts of the body puncturing both  the heart and the lung as well as pelting  stones at him even when he fell on the  ground. But for their participation and a  clear frame of mind to kill the deceased,  Dinesh probably would not have been able to  kill Mahavir. The role attributable to each  one of them, thus, clearly demonstrates  common intention and common participation  to achieve the object of killing the deceased.  

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In other words, the criminal act was done  with the common intention to kill the  deceased Mahavir. The trial court has rightly  noticed in its judgment that all the accused  persons coming together in the night time  and giving such serious blows and injuries  with active participation shows a common  intention to murder the deceased. In these  circumstances, the conclusions arrived at by  the trial court and the High Court would not  call for any interference.

24. The learned counsel appearing for the  appellant had relied upon the judgment of  this Court in Shivalingappa Kallayanappa v.  State of Karnataka to contend that they  could not be charged or convicted for an  offence under Section 302 with the aid of  Section 34 IPC. The said judgment has  rightly been distinguished by the High Court  in the judgment under appeal. In that case,  the Supreme Court had considered the role  of each individual and recorded a finding  that there was no common object on the part  of the accused to commit murder. In that  case, the Court was primarily concerned with  the common object falling within the ambit of  Section 149 IPC. In fact, Section 34 IPC has  not even been referred to in the aforereferred  judgment of this Court.

25. Another case to which attention of this  Court was invited is Jai Bhagwan v. State of  Haryana. In that case also, the Court had  discussed the scope of Section 34 IPC and  held that common intention and  participation of the accused in commission of  the offence are the ingredients which should  be satisfied before a person could be  convicted with the aid of Section 34 IPC. The  Court held as under: (SCC p. 107, para 10)

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“10. To apply Section 34 IPC apart from  the fact that there should be two or  more accused, two factors must be  established: (i) common intention and  (ii) participation of the accused in the  commission of an offence. If a common  intention is proved but no overt act is  attributed to the individual accused,  Section 34 will be attracted as  essentially it involves vicarious liability  but if participation of the accused in  the crime is proved and a common  intention is absent, Section 34 cannot  be invoked. In every case, it is not  possible to have direct evidence of a  common intention. It has to be inferred  from the facts and circumstances of  each case.”

26. The facts of the present case examined in  the light of the above principles do not leave  any doubt in our minds that all the three  accused had a common intention in  commission of this brutal crime. Each one of  them participated though the vital blows  were given by Dinesh Dhimar. But for  Mahesh catching hold of the arms of the  deceased, probably the death could have  been avoided. Nand Kishore showed no  mercy and continued pelting stones on the  deceased even when he collapsed to the  ground. The prosecution has been able to  establish the charge beyond reasonable  doubt.”

63. In the case of Lallan Rai and Others v. State of Bihar [(2003)  

1 SCC 268], this Court noticed the dominant feature for  

attracting the applicability of Section 34 IPC and dealt with the  

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case where the contention was that several persons may have  

similar intention, yet they may not have common intention in  

furtherance to which they participated in an action.   The court  

noticed as under:-

“17. In para 44 of the judgment in Suresh  this Court (the majority view) stated: (SCC  pp. 689-90)

“44. Approving the judgments of the  Privy Council in Barendra Kumar  Ghosh and Mahbub Shah cases a three- Judge Bench of this Court in  Pandurang v. State of Hyderabad held  that to attract the applicability of  Section 34 of the Code the prosecution  is under an obligation to establish that  there existed a common intention  which requires a pre-arranged plan  because before a man can be  vicariously convicted for the criminal  act of another, the act must have been  done in furtherance of the common  intention of all. This Court had in mind  the ultimate act done in furtherance of  the common intention. In the absence  of a pre-arranged plan and thus a  common intention even if several  persons simultaneously attack a man  and each one of them by having his  individual intention, namely, the  intention to kill and each can  individually inflict a separate fatal blow  and yet none would have the common  intention required by the section. In a  case like that each would be  individually liable for whatever injury  he caused but none could be  

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vicariously convicted for the act of any  or the other. The Court emphasised the  sharing of the common intention and  not the individual acts of the persons  constituting the crime. Even at the cost  of repetition it has to be emphasised  that for proving the common intention  it is necessary either to have direct  proof of prior concert or proof of  circumstances which necessarily lead  to that inference and ‘incriminating  facts must be incompatible with the  innocence of the accused and incapable  of explanation or any other reasonable  hypothesis’. Common intention, arising  at any time prior to the criminal act, as  contemplated under Section 34 of the  Code, can thus be proved by  circumstantial evidence.”

18. In Suresh this Court while recording the  dominant feature for attracting Section 34  has the following to state: (SCC p. 686, para  39)

“39. The dominant feature for attracting  Section 34 of the Indian Penal Code  (hereinafter referred to as ‘the Code’) is  the element of participation in absence  resulting in the ultimate ‘criminal act’.  The ‘act’  referred to in the later part of  Section 34 means the ultimate criminal  act with which the accused is charged  of sharing the common intention. The  accused is, therefore, made responsible  for the ultimate criminal act done by  several persons in furtherance of the  common intention of all. The section  does not envisage the separate act by  all the accused persons for becoming  responsible for the ultimate criminal  act. If such an interpretation is  

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accepted, the purpose of Section 34  shall be rendered infructuous.”

19. For true and correct appreciation of  legislative intent in the matter of engrafting  of Section 34 in the statute-book, one needs  to have a look into the provision and as such  Section 34 is set out as below:

“34. Acts done by several persons in  furtherance of common intention.—When  a criminal act is done by several  persons in furtherance of the common  intention of all, each of such persons is  liable for that act in the same manner  as if it were done by him alone.”

20. A plain look at the statute reveals that  the essence of Section 34 is simultaneous  consensus of the mind of persons  participating in the criminal action to bring  about a particular result. It is trite to record  that such consensus can be developed at the  spot. The observations above obtain support  from the decision of this Court in  Ramaswami Ayyangar v. State of T.N.

21. In a similar vein the Privy Council in  Barendra Kumar Ghosh v. King Emperor  stated the true purport of Section 34 as  below: (AIR p. 6)

“[T]he words of Section 34 are not to be  eviscerated by reading them in this  exceedingly limited sense. By Section  33 a criminal act in Section 34 includes  a series of acts and, further, ‘act’  includes omission to act, for example,  an omission to interfere in order to  prevent a murder being done before  one's very eyes. By Section 37, when  any offence is committed by means of  

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several acts whoever intentionally  cooperates in the commission of that  offence by doing any one of those acts,  either singly or jointly with any other  person, commits that offence. Even if  the appellant did nothing as he stood  outside the door, it is to be remembered  that in crimes as in other things ‘they  also serve who only stand and wait’.”

22. The above discussion in fine thus  culminates to the effect that the requirement  of statute is sharing the common intention  upon being present at the place of  occurrence. Mere distancing himself from the  scene cannot absolve the accused — though  the same however depends upon the fact  situation of the matter under consideration  and no rule steadfast can be laid down  therefor.”

64. Upon analysis of the above judgments and in particular the  

judgment of this Court in the case of Dharnidhar v. State of Uttar  

Pradesh and Others [(2010) 7 SCC 759], it is clear that Section 34  

IPC applies where two or more accused are present and two  

factors must be established i.e. common intention and  

participation of the accused in the crime. Section 34 IPC  

moreover, involves vicarious liability and therefore, if the  

intention is proved but no overt act was committed, the Section  

can still be invoked.   This provision carves out an exception from  

general law that a person is responsible for his own act, as it  

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provides that a person can also be held vicariously responsible for  

the act of others, if he had the common intention to commit the  

act.   The phrase ‘common intention’  means a pre-oriented plan  

and acting in pursuance to the plan, thus, common intention  

must exist prior to the commission of the act in a point of time.  

The common intention to give effect to a particular act may even  

develop at the spur of moment between a number of persons with  

reference to the facts of a given case.

65. The ingredients of more than two persons being present,  

existence of common intention and commission of an overt act  

stand established in the present case.   The statements of the  

witnesses clearly show that all the eight accused were present at  

the scene of occurrence. They had demanded money and  

extended threat of dire consequences, if their demand was not  

satisfied.  Thereafter, they had altercation with the deceased and  

the deceased was strangulated by the accused persons and then  

his body was disposed of by cutting it into pieces and packing the  

same in gunny bags and abandoning the same at a deserted place  

near the Barrackpore Dum Dum Highway. Thus, all these acts  

obviously were in furtherance to the common intention of doing  

away with the deceased, if he failed to give them Rs. 40,000/- as  

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demanded.  The offence was committed with common intention  

and collective participation.   The various acts were performed by  

different accused in presence of each one of them.  In other  

words, each of the accused had common intention.   Thus, we  

find that the argument on the application of Section 34 IPC  

advanced on behalf of the accused is without any substance.

66. For the reasons afore-stated, we see no reason to interfere  

with the judgment of the High Court either on merits or on the  

quantum of sentence.   Therefore, the appeals are dismissed.

…….…………......................J.                                             (A.K. Patnaik)

...….…………......................J.                                             (Swatanter Kumar)

New Delhi, July 11, 2012

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