SUDIP KR. SEN @ BILTU Vs STATE OF W.B. .
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-000017-000017 / 2016
Diary number: 2926 / 2013
Advocates: RUKHSANA CHOUDHURY Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 17 of 2016 (Arising out of SLP (Crl.) No.2600 of 2013)
SUDIP KR. SEN @ BILTU ..Appellant Versus
STATE OF WEST BENGAL & ORS. ..Respondents WITH
CRIMINAL APPEAL NO. 19 of 2016 (Arising out of SLP (Crl.) No.4506 of 2013)
GOUTAM GHOSH ..Appellant Versus
STATE OF WEST BENGAL ..Respondent
CRIMINAL APPEAL NO. 21 of 2016 (Arising out of SLP (Crl.) No.5362 of 2013)
APU CHATTERJEE @ SOUMITRA ....Appellant Versus
STATE OF WEST BENGAL ..Respondent
CRIMINAL APPEAL NO. 23 OF 2016 (Arising out of SLP (Crl.) No.1370 of 2014)
SANKAR DAS @ BHAI …Appellant Versus
STATE OF WEST BENGAL …Respondent AND
CRIMINAL APPEAL NO. 25 OF 2016 (Arising out of SLP (Crl.) No.8098 of 2014)
TAPAS DAS @ BHAMBAL …Appellant Versus
STATE OF WEST BENGAL …Respondent
J U D G M E N T
R. BANUMATHI, J.
Delay condoned. Leave granted.
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2. These appeals arise out of the common judgment dated
24.09.2012 passed by the High Court of Calcutta dismissing Criminal
Appeal No.544 of 2004 filed by the appellants and thereby affirming
the conviction of the appellants under Section 302 read with Section
34 IPC and sentence of life imprisonment and a fine of rupees five
thousand imposed on each of them.
3. Briefly stated case of the prosecution is that on 13.01.2002
at about 08.30 p.m., complainant-PW1-Gora Das was having tea
alongwith some of his friends at the shop of one Bablu Pal-PW5 at
Shakherbazar. Sandipan Majumdar-PW6 sitting on his motorcycle
was also having tea in front of tea stall of PW-5. At that time, the
appellants came in a body to the place of occurrence. At first,
appellant-Sudip Kumar Sen @ Biltu (A-3) abused the deceased-Saikat
Saha and asked him as to why he did not meet Jishu da in the court
as he was asked to do so at several occasions. Appellant-Apu
Chatterjee @ Soumitra (A-6) said that if the men of Khoka were not
killed then there would be no peace. On such exhortation, appellants-
Tapas Das @ Bhambal (A-2) and Sankar Das @ Bhai (A-4) caught hold
of Saikat Saha-deceased and appellants Goutam Ghosh (A-1) and Sk.
Kochi @ Sk. Mobarak (A-5) fired at him and Saikat Saha sustained
two gunshot injuries in the right chest. Gora Das-PW1 and Sandipan
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Majumdar-PW6 had immediately taken injured Saikat Saha to
Calcutta Medical Research Institute. Dr. Debasish Pal-PW9 examined
Saikat Saha and declared that he was brought dead and issued Injury
Report (Ex.4) and Death Certificate (Ex-P4/1).
4. Gora Das-PW1 lodged the complaint on 14.01.2002 at 1.45
a.m. before Thakurpukur Police Station, on the basis of which FIR
was registered in Case No.12 of 2002 under Section 302 read with
Section 34 IPC and Sections 25 and 27 of the Arms Act against
unknown persons. A. K. Ghosh- Investigating Officer-PW13 had taken
up the investigation and visited the spot and examined the available
witnesses including PW6-Sandipan Majumdar who informed the
police that he had witnessed the event and PW-6 also named the
accused. On his statement, the appellants and accused Sk. Kochi @
Sk. Mobarak and one Jishu Jain were arrested. After investigation,
chargesheet was filed against the appellants and other accused under
Section 302 read with Section 34 IPC, Section 120-B IPC and Sections
25 and 27 of the Arms Act.
5. To prove the charges against the accused, prosecution
examined thirteen witnesses and adduced documentary evidence.
Upon appreciation of evidence and observing that PW-6 is a
trustworthy witness, Additional Sessions Judge, Alipore convicted the
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appellants and Sk. Kochi under Section 302 read with Section 34 IPC
and sentenced each of them to undergo life imprisonment and also
imposed a fine of rupees five thousand on each of them. The trial
court acquitted the co-accused Jishu Jain of all the charges levelled
against him. Aggrieved by the verdict of conviction, the appellants
filed appeal before the High Court. The High Court vide impugned
judgment dated 24.09.2012 dismissed the appeal thereby affirmed the
conviction and sentence imposed on the appellants as aforesaid. Being
aggrieved, the appellants-Goutam Ghosh (A-1), Tapas Das @ Bhambal
(A-2), Sudip Kr. Sen @ Biltu (A-3), Sankar Das @ Bhai (A4) and Apu
Chatterjee @ Soumitra (A-6) are before us. Accused Sk. Kochi @ Sk.
Mobarak (A-5) has not challenged the impugned judgment.
6. Learned counsel for the appellants contended that both the
courts below failed to take into account the serious flaws,
inconsistencies and contradictions in the statement of prosecution
witnesses which according to the appellants, practically demolished
the version of the prosecution as propounded by the testimony of
PW-6. It was submitted that in the cross-examination, PW-1
categorically stated that at the time of occurrence he and his friends
ran to the spot which is at a distance of few yards from the tea stall
and therefore PW-6 could not have witnessed the occurrence sitting
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on the motor cycle and taking tea along with PW-1 and version of
PW-6 is totally contradictory to the statement of PW-1. Raising
doubts as to the credibility of testimony of PW-6, it was submitted
that PW-6 is said to have accompanied PW-1 in taking the deceased to
the hospital, he did not reveal the identity of the assailants to PW-1
and not even at the time of lodging the FIR which was registered
against unknown persons.
7. Per contra, learned counsel for the respondent-State
contended that the culpability of the appellants have been proved to
the hilt by the evidence of PW-6 who was a natural eye-witness to the
occurrence and that he was standing outside the tea stall and was in
a vantage position to see the assailants and witness the occurrence.
It was further submitted that the courts below recorded concurrent
findings to the credibility of PW-6 and there is no ground warranting
interference with the conviction of the appellants.
8. We have considered the rival contentions and perused the
impugned judgment and material on record.
9. Sandipan Majumdar-PW6 has stated that on the date of
the incident i.e. on 13.01.2002 at about 8.30 p.m., while he was
taking tea at the tea stall at Shakerbazar, Saikat Saha, PW1-Gora Das
and others were also taking tea there. PW-6 had categorically stated
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that the assailants armed with firearms came together and Sudip
Kumar Sen (A-3) started abusing Saikat Saha and questioned him as
to why he did not meet Jishu da in the court inspite of several
reminders. Apu Chatterjee (A-6) shouted that there will be no peace if
the men of Khoka were not killed. On such exhortation, Tapas Das
(A-2), Sankar Das (A-4) caught hold of deceased and Goutam Ghosh
(A-1) and Sk. Kochi (A-5) fired at Saikat Saha. PW-6 stated that the
appellants were doing illegal business of collecting money from the flat
owners in the locality and an altercation took place over the said
matter and PW-6 further stated that the appellants also used to come
to the deceased and thus he knew all of them. PW-6 was examined by
the police on the very next day i.e. on 14.01.2002 and in his
statement before the police, PW-6 named the appellants-accused
except Jishu Jain as the assailants. PW-6 was a natural eye-witness
to the incident. Throughout the searching cross-examination, PW-6
remained consistent and his evidence remained unshaken. That PW-6
is a natural witness is also borne out from the fact that PW-6
accompanied PW1-Gora Das in immediately taking the deceased to
the hospital and the same is evident from the Injury Report (Ex.4) and
Death Certificate (Ex-4/1) issued by PW9-Dr. Debasish Pal which
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clearly mention that the deceased was brought to the hospital by
PW-1 and PW-6.
10. Complainant-Gora Das (PW-1), though not named the
assailants, in his evidence stated that while he was taking tea in the
tea stall of Bablu Pal (PW-5) situated at Shakherbazar Behala at about
8.30 p.m., he heard sound of the firearm and when he ran to the spot,
he found the deceased-Saikat Saha lying with bleeding injuries and
that he along with PW-6 took the injured to Calcutta Medical Research
Institute. Evidence of Pinku Biswas-PW2 is also to the same effect
that he heard the sound of two shots and there was chaos in the
street and shutters were closed down by shopkeepers and after
sometime when people came out, they saw Saikat Saha with gunshot
injuries. Evidence of Paritosh Pal-PW3 and Gora Das-PW1 who are the
nearby shop owners is also to the same effect. Though PWs 1 to 4
have not named the assailants, their evidence shows that there was
an occurrence in which Saikat Saha was shot by the assailants which
lends assurance to the evidence of PW-6. Evidence of PW-6 that the
deceased sustained two gunshot injuries is also supported by the
medical evidence i.e. Injury Report (Ex.4) and Death Certificate
(Ex.4/1) issued by Dr. Debasish Pal (PW-9).
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11. It is well-settled that the court may act on a testimony of a
single witness though uncorroborated, provided that the testimony of
single witness is found reliable. Trial court which had the opportunity
of seeing and hearing PW-6 found him wholly reliable and trustworthy
and held that evidence of Sandipan Majumdar-PW6 cannot be
doubted as far as the role attributed to A-1 to A-6 except Jishu Jain is
concerned, which was affirmed by the High Court. We find no ground
to interfere with the concurrent finding recorded by the Courts below
as to the reliability of PW-6 and to record the conviction.
12. Observing that there is no impediment for recording
conviction based on the testimony of a single witness provided it is
reliable in Prithipal Singh & Ors. vs. State of Punjab & Anr.,
(2012) 1 SCC 10, it was observed as under:-
“49. This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence.” [See Vadivelu Thevar v. State of Madras, AIR 1957 SC 614, Sunil Kumar v. State (Govt. of NCT of Delhi, (2003) 11 SCC 367, Namdeo v. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal v. State of W.B., (2010) 12 SCC 91]
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13. The appellants are convicted for the offence under
Section 302 read with Section 34 IPC. Learned counsel for
appellants–accused (A-2 to A-4 and A-6) submitted that accused
Sudip Kumar Sen (A-3) and Apu Chatterjee (A-6) are said to have
abused the deceased and Tapas Das (A-2) and Sankar Das (A-4) are
alleged to have caught hold of the deceased and there is no
evidence that A-2 to A-4 and A-6 have shared common intention
with other co-accused to fire at the deceased and therefore
conviction of these accused under Section 302 read with Section 34
IPC is not sustainable.
14. Section 34 IPC embodies the principle of joint liability in
the doing of a criminal act and essence of that liability is the
existence of common intention. Common intention implies acting in
concert and existence of a pre-arranged plan which is to be
proved/inferred either from the conduct of the accused persons or
from attendant circumstances. To invoke Section 34 IPC, it must be
established that the criminal act was done by more than one
person in furtherance of common intention of all. It must,
therefore, be proved that:- (i) there was common intention on the
part of several persons to commit a particular crime and (ii) the
crime was actually committed by them in furtherance of that
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common intention. Common intention implies pre-arranged plan.
Under Section 34 IPC, a pre-concert in the sense of a distinct
previous plan is not necessary to be proved. The essence of liability
under Section 34 IPC is conscious mind of persons participating in
the criminal action to bring about a particular result. The question
whether there was any common intention or not depends upon
inference to be drawn from the proved facts and circumstances of
each case. The totality of the circumstances must be taken into
consideration in arriving at the conclusion whether the accused
had a common intention to commit an offence with which they
could be convicted.
15. Considering the facts and circumstances of the case in
hand, it is evident that there was prior concert and that the
appellants have acted in furtherance of common intention. As seen
from the evidence of PW-6, all the appellants and another co-
accused Sk. Kochi were doing illegal business of extorting money
from the flat owners. On the date of occurrence, all the appellants
and another co-accused Sk. Kochi came together and Sudip Kumar
Sen @ Biltu (A-3) started abusing the deceased and Apu Chatterjee
(A-6) exhorted others that if the men of Khoka were not killed, there
would be no peace. On such exhortation, Tapas Das and Sankar
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Das (A-2 and A-4) caught hold of the deceased and Goutam Ghosh
and Sk. Kochi (A-1 and A-5) fired at the deceased. Facts and
circumstances clearly establish meeting of minds and common
intention of the appellants in committing the murder of Saikat
Saha and the appellants were rightly convicted under Section 302
read with Section 34 IPC. No ground for interference under Article
136 of the Constitution of India is made out.
16. In the result, all the appeals fail and are dismissed
accordingly.
……………………..CJI. (T.S. THAKUR)
………………………..J. (R. BANUMATHI)
New Delhi; January 07, 2016
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