# SHYAMAL GHOSH v. STATE OF WEST BENGAL

- **Citation:** [2012] 10 S.C.R. 95
- **Court:** Supreme Court of India
- **Decided:** 2012-07-11
- **Case number:** Criminal Appeal No. 507 of 2007
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shyamal-ghosh-v-state-of-west-bengal-27957
- **Pages:** 62

## Headnote

Penal Code, 1860:
A
B
ss. 302, 201, 379, 411 rlw. s. 34 - Prosecution under -
c
Of eight accused - For killing one person and disposing of
the body, after cutting it, in gunny bags - Accused absconding
immediately after the incident - Circumstantial evidence as
well as eye-witnesses to different events - Recovery of
weapon of offence and the vehicle used for carrying the
0
mutilated body - Trial court convicting all the accused and
sentencing them to death - High Court affirming the
conviction except uls. 379 and sentencing the accused to life
imprisonment -
On appeal, held: Order of High Court
affirmed - The prosecution case is supported by the evidence
E
of eye-witnesses who are reliable and trustworthy -
Background of the accused, their conduct in absconding
immediately after the incident and their statement uls. 313
Cr.P.C. also supports prosecution case - The evidence
establishes last seen together theory - Prosecution has also
proved the chain of events :.... Code of Criminal Procedure,
1973 - s. 313.
F
s. 34 - Common intention - Applicability and nature of
- Held: For applicability of this provision, two factors must be
established i.e. common intention and participation in crime
G
- The provision involves vicarious liability for the act of others
- On facts, ingredients of presence of more than two persons,
existence of common intention and commission of an overt
act stand established.
95
H
96
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A
Code of Criminal Procedure, 1973 - s. 162 Explanation
- Contradiction and omission - What amounts to - Held:
Omission of fact or a circumstance in the statement uls. 161
Cr.P. C. may amount to contradiction - However, the question
whether the omission amounts to contradiction is a question
s of fact in each case -
The concept of contradiction in
evidence cannot be stated in absolute terms and has to be
construed liberally so as to leave desirable discretion with the
court to determine whether it is contradiction or material
contradiction - Criminal jurisprudence.
c
Criminal trial - Contradictions and omissions in evidence
- Effect on prosecution case - Held: Minor contradictions,
inconsistencies or embellishments of trivial nature which do
no affect the case of the prosecution cannot be a ground to
reject the prosecution in its entirety - Serious contradictions
D and omissions materially affecting the prosecution case to be
understood in clear contra-distinction to marginal variations
in the statements of witnesse.
E
Witnesses:
Hostile witness - Held: Statement of hostile witness can
also be relied upon, to the extent it supports prosecution case.
Related witness - Mechanical rejection of the evidence
of witness related to the deceased would relate to failure of
F justice - However, the court has to be careful in evaluating
such evidence.
Evidence - Onus to prove - Murder case - Circumstantial
evidence - Last seen together - Held: Once the last seen
G together theory comes into play, the onus to explain as to what
happened to the deceased after they were last seen, is on the
accused.
H
Test Identification Parade - Nature of - Failure to hold -
Effect of - Held: Identification Parade is a tool of investigation
. SHYAMAL GHOSH v. STATE OF WEST BENGAL
97
- It is only a relevant consideration which may be examined
A
by the court in view of other attendant circumstances and
corroborative evidence - Its purpose is to test and strengthen
the trustworthiness of the evidence - This rule of prudence is
subject to exceptions - Failure to hold Tl Parade, does not
by itself render the evidence of identification in court B
inadmissible or unacceptable.
Investigation - Held: Defects in investigation, by itself
cannot be a ground for acquittal.
Words and Phrases - ' Common Intention' - Meaning of,
C
in the context of s. 34 /PC.
Appellants-accused along with other accused were
prosecuted for causing death of one person. The
prosecution case was that the deceased had constructed o
some shop on his land. Th

## Text

_Characters 0–39,895 of 121,929. This is a partial read: ask again with offset=39895 for what follows._

[2012] 10 S.C.R. 95
SHYAMAL GHOSH
v.
STATE OF WEST BENGAL
(Criminal Appeal No. 507 of 2007 etc.)
JULY 11, 2012
(A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Penal Code, 1860:
A
B
ss. 302, 201, 379, 411 rlw. s. 34 - Prosecution under -
c
Of eight accused - For killing one person and disposing of
the body, after cutting it, in gunny bags - Accused absconding
immediately after the incident - Circumstantial evidence as
well as eye-witnesses to different events - Recovery of
weapon of offence and the vehicle used for carrying the
0
mutilated body - Trial court convicting all the accused and
sentencing them to death - High Court affirming the
conviction except uls. 379 and sentencing the accused to life
imprisonment -
On appeal, held: Order of High Court
affirmed - The prosecution case is supported by the evidence
E
of eye-witnesses who are reliable and trustworthy -
Background of the accused, their conduct in absconding
immediately after the incident and their statement uls. 313
Cr.P.C. also supports prosecution case - The evidence
establishes last seen together theory - Prosecution has also
proved the chain of events :.... Code of Criminal Procedure,
1973 - s. 313.
F
s. 34 - Common intention - Applicability and nature of
- Held: For applicability of this provision, two factors must be
established i.e. common intention and participation in crime
G
- The provision involves vicarious liability for the act of others
- On facts, ingredients of presence of more than two persons,
existence of common intention and commission of an overt
act stand established.
95
H
96
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A
Code of Criminal Procedure, 1973 - s. 162 Explanation
- Contradiction and omission - What amounts to - Held:
Omission of fact or a circumstance in the statement uls. 161
Cr.P. C. may amount to contradiction - However, the question
whether the omission amounts to contradiction is a question
s of fact in each case -
The concept of contradiction in
evidence cannot be stated in absolute terms and has to be
construed liberally so as to leave desirable discretion with the
court to determine whether it is contradiction or material
contradiction - Criminal jurisprudence.
c
Criminal trial - Contradictions and omissions in evidence
- Effect on prosecution case - Held: Minor contradictions,
inconsistencies or embellishments of trivial nature which do
no affect the case of the prosecution cannot be a ground to
reject the prosecution in its entirety - Serious contradictions
D and omissions materially affecting the prosecution case to be
understood in clear contra-distinction to marginal variations
in the statements of witnesse.
E
Witnesses:
Hostile witness - Held: Statement of hostile witness can
also be relied upon, to the extent it supports prosecution case.
Related witness - Mechanical rejection of the evidence
of witness related to the deceased would relate to failure of
F justice - However, the court has to be careful in evaluating
such evidence.
Evidence - Onus to prove - Murder case - Circumstantial
evidence - Last seen together - Held: Once the last seen
G together theory comes into play, the onus to explain as to what
happened to the deceased after they were last seen, is on the
accused.
H
Test Identification Parade - Nature of - Failure to hold -
Effect of - Held: Identification Parade is a tool of investigation
. SHYAMAL GHOSH v. STATE OF WEST BENGAL
97
- It is only a relevant consideration which may be examined
A
by the court in view of other attendant circumstances and
corroborative evidence - Its purpose is to test and strengthen
the trustworthiness of the evidence - This rule of prudence is
subject to exceptions - Failure to hold Tl Parade, does not
by itself render the evidence of identification in court B
inadmissible or unacceptable.
Investigation - Held: Defects in investigation, by itself
cannot be a ground for acquittal.
Words and Phrases - ' Common Intention' - Meaning of,
C
in the context of s. 34 /PC.
Appellants-accused along with other accused were
prosecuted for causing death of one person. The
prosecution case was that the deceased had constructed o
some shop on his land. The accused persons demanded
Rs. 40,0001- from the deceased towards 'Tola Mastani
Salami' for the construction of the shops. The deceased
refused to succumb to the demand and therefore, the
accused threatened to murder him.
On the day of the incident, at 9.00 P.M., the deceased
had gone to one '<;' in respect of his business, on a
bicycle. From there, he retuned to his house at 10.00P.M.
E
On the way, he was restrained by the accused. The
accused killed him by strangulation. Thereafter, they cut
F
the body into pieces with a sharp cutting weapon and
after putting the same in gunny bags, carried them in a
van in the night of the following day and left the same at
some place. PW 15 saw those gunny bags and reported
the matter to the police. FIR was lodged and case was
G
registered ulss. 302/201/341PC against unknown
miscreants.
The wife and brother of the deceased, had lodged a
Missing Diary Report. They were called to the police
H
98
SUPREME COURT REPORTS
[2012] 10 S.C.R
A station to identify the dead body. Driver of the van was
arrested. The van was recovered on the basis of his
statement. All the accused were arrested on different
dates. The cycle used by the deceased was recovered.
8
The accused were charged u/ss. 302, 201, 379, 411
rlw. s. 34 IPC. Trial court found them guilty of all the
charges and sentenced them to death. High Court
maintained their conviction except u/s.379/34 IPC,
answered the death reference in the negative and
C awarded R1 for life and fine of Rs. 5000/-. The present
appeals were filed by four of the accused.
The appellants interalia contended that the present
case, being a case of circumstantial evidence, does not
complete chain of events; that the prosecution case was
D not reliable because PWs 13 and 23 turned hostile; that
the crucial witnesses PWs 8, 17 and 19 did not name the
appellant-accused 'SH'; that there was delay in recording
evidence of the witnesses; that conviction could not be
based on the evidence of related witnesses; that the
E accused were not named in the FIR; that the appellantaccused was not identified in Tl Parade; and therefore,
conviction was not justified. They also contended that s.
34 IPC is not attracted as there was no common intention
and participation by all the accused.
F
Dismissing the appeals, the Court
HELD: 1.1. It is not correct to say that the complete
chain of circumstantial evidence having not been
established, the accused are entitled to acquittal. This is
G 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
H gunny bags into Maruti Van. Evidence establishing the
SHYAMAL GHOSH v. STATE OF WEST BENGAL
99
'last seen together' theory and the fact that after A
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
B
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 c
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
0
explanation in this regard. [Para 42] [139-E-H; 140-A-C]
Mousam Singh a Roy and Ors. v. State of W B. (2003)
12 sec 377 - referred to.
1.2. The statements of PWs 8, 17, 19, 7, 9 and 11
E
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
F
the vital circumstances i.e. commission of murder as well
as disposal of the body of the deceased have been
proved. [Para 25] [125-F-G]
1.3. The evidence of PWs 4, 6, 8, 17, 19, 7,9,11, 2, 1,
PW 16 (doctor) and PW10 completes the chain of events
G
and establishes the case of the prosecution beyond any
reasonable doubt. The facts, right from the departure of
the deceased from his house to recover money, upto the
recovery of mutilated body of the deceased, have been
H
100
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A proved by different witnesses, including some eyewitnesses. [Para 32] [131-A-B]
1.4. 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
B. 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. In the facts of
C the present case, the factor of time does not play such a
significant role because it is a case where there were eyewitnesses 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
D 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, PW-7, PW-9 and PW11 are witnesses to the loading of the gunny bags
E containing human body parts in the Maruti Van by the
accused. Thus, these facts have been established by
independent witnesses. 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
F fact of death of the deceased becoming known. All the
events occurred between 11.00 p.m. to 12.00 a.m. at
midnight of 29th September, 2003. [Paras 51, 53 and 54]
[144-C; 145-B-D, G-H]
G
S.K. Yusuf vs. State of West Bengal (2011) 11 SCC 754:
2011 (8) SCR 83 - relied on.
Mohd. Azad @ Samin vs. State of West Bengal (2008)
15 SCC 449: 2008 (15) SCR 468; State through Central
Bureau of Investigation vs. Mahender Singh Dahiya (2011)
H 3 SCC 109: 2011 (1) SCR 1104 - referred to.
SHYAMAL GHOSH v. STATE OF WEST BENGAL
101
1.5. The conduct of the accused persons i.e.
A
absconding immediately after the date of the occurrence
is important. 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 it is assumed that absconding by
B
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 it is clear c
that absconding of the accused not only goes with the
hypothesis of guilt of the accused but also points a
definite finger towards them. (Para 41] (138-G-H; 139-AB]
Rabindra Kumar Pal @ Dara Singh v. Republic of India
D
(2011) 2 sec 44 - relied on.
1.6. There are 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 three
accused. The recoveries affected by the Investigating
Officer, PW28 can hardly be questioned in fact and in law.
[Para 28] (126-F-H]
1.7. The mere fact that the two witnesses viz. PW 13
and PW 23 had turned hostile would not affect the case
E
F
of the prosecution adversely. Firstly, it is for the reason
that the facts that these witnesses were to prove, stand
G
already 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
H
102
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
recovery of the Maruti Van 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 the driver of the van that the
vehicle had been recovered. Other witnesses have
B proved that the said vehicle was used for carrying the
gunny bags containing the mutilated parts of the dead
body of the deceased. 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
c 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. Their statements
have partially supported the case of the prosecution. It
0
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. [Para 33] [131-GH; 132-A-C; E-F]
Govindaraju@ Govinda v. State by Sriramapuram P.S.
E and Anr. (2012) 4 sec 722 - relied on.
1.8. 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
F 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. In the
present case, the examination of the interested witnesses
was inevitable. They were the persons who had
G 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.
SHYAMAL GHOSH v. STATE OF WEST BENGAL
103
Merely because three witnesses were related to the
A
deceased, the other witnesses, not similarly placed,
would not attract any suspicion of the court on the
credibility and worthiness of their statements. [Paras 37
and 38] [135-C; 136-C-D]
Brathi alias Sukhdev Singh v. State of Punjab (1991) 1
SCC 519: 1990 (2) Suppl. SCR 503 - relied on.
State of Orissa v. Brahmananda Nanda (1976) 4 SCC
288; Maruti Rama Naik v. State of Maharashtra (2003) 10
sec 670 - referred to.
1.9. Of course, there are certain discrepancies in the
investigation inasmuch as the Investigating Officer failed
B
c
to send the blood stained gunny bags and other
recovered weapons to the FSL, to take photographs of o
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
E
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
F
circumstances of the present case. 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 and confidence of the
G
people in· the criminal justice administration would be
eroded. [Para 40] [137-D-G-H; 138-A]
C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567:
2010 (10) SCR 262; Sheo Shankar Singh v. State of H
104
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A Jharkhand and Anr. (2011) 3 SCC 654: 2011 (4) SCR 312 -
relied on.
1.10. If the explanation offered for the delayed
examination of a particular witness is plausible and
8 acceptable and the court accepts the same as plausible,
there is no reason to interfere with the conclusion arrived
at by the courts. 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
C on the credibility of the prosecution evidence tendered
by other witnesses. 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-occupied
D 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
E 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. He
had ensured that the mutilated body parts of the
deceased reached the hospital and also effected recovery
F 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. Some delay was bound to occur in recording
G the statements of the witnesses whose names came to
light after certain investigation had been carried out by
the Investigating Officer. [Paras 37 and 38] [135-A-B-D-H;
136-A-C}
H
Banti alias Guddu v. State of M.P. (2004) 1 SCC 414:
SHYAMAL GHOSH v. STATE OF WEST BENGAL
105
2003 (5) Suppl. SCR 119; State of U.P. v. Satish (2005) 3 A
sec 114: 2005 (2) SCR 1132 - relied on.
1.11. The appellant-accused took the plea that he
was not named in the FIR, was not identified in police
custody and was also not named by PWB in his
8
statement, and that since none of the accused was
named in the FIR, it was a case of blind murder at that
stage and was so registered by the police. It is true that
the appellant-accused was not named by PWB, had only
named six accused persons. All the three eye-witnesses C
to altercation and strangulation viz. PWB, PW17 and
PW19 named some of the accused person..:~ while did not
name others specifically. However, they identified all the
accused persons in the court as the pers9ns who were
present at the time of the mischief, altercation and
strangulation of the deceased. In the present case, the
D
prosecution has been able to establish its case beyond
reasonable doubt. [Paras 45 and 46] [141-A-D; 142-A]
Tika Ram v. State of Madhya Pradesh (2007) 15 SCC
760 - relied on.
E
1.12. From the content of Ext. 10 (FIR), 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
F
course of investigation, the story leading to the
commission of the crime got unfolded and pointed
towards the guilt of the accused with certainty. [Para 14]
[120-C-D]
2.1. Every omission cannot take the place of a G
contradiction in law and therefore, be the foundation for
doubting the case of the prosecution. Minor
contradictions, 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
H
106
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A 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
B 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
c 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 is that the court
0 shouh;I 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 on
E 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. [Para 47] [142·
B·G]
F
2.2. 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
G 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
H reveals that if a significant omission is made in a
SHYAMAL GHOSH v. STATE OF WEST BENGAL
107
statement of a witness under Section 161 Cr.P.C., the
A
same may amount to contradiction and the question
whether it so amounts is a question of fact in each case.
[Para 48] [142-H; 143-A-C]
Sunil Kumar Sambhudayal Gupta (Dr.) vs. State of
Maharashtra (2010) 13 SCC 657; Subhash vs. State of B
Haryana (2011) 2 SCC 715: 2010 (15) SCR 452 - relied
on.
2.3. The basic element which is unambiguously clear
from the explanation to Section 162 CrPC is use of the
C
expression 'may'. 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 o
'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
E
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 arid affects the case of the prosecution
materially. [Para 49] [143-0-G]
F
2.4. It is true that there is some variation in the timing
G
given by the eye-witnesses. PW8, PW17 and PW19 as to
when they had seen the scuffling and strangulation of the
deceased by the accused. Similarly, there is some
variation in the statement of PW7, PW9 and PW11. Certain
variations are also pointed out in the statements of PW2,
H
108
SUPREME COURT REPORTS
(2012) 10 S.C.R.
A PW4 and PW6 as to the motive of the accused for
commission of the crime. Every variation may not be
enough to adversely affect the case of the prosecution.
The variations pointed out as regards the time of
commission of the crime are quite possible in the facts
8 of the present case. 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
C in part and/or in isolation. There is no material or serious
contradiction in the statement of these witnesses which
may give any advantage to the accused. [Para 34] [132G-H; 133-A-B; 134-8-C]
·3.1. CrPC does not oblige the investigating agency
D 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. One
of the views taken is that identification in court for the first
E 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
F 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 rute of prudence is, however subjected to
exceptions. [Para 57] [146-E-H]
G
H
Munstl.i Singh Gautam v. State of M.P. (2005) 9 SCC
631: 2004 (5 ) Suppl. SCR 1092; Sheo Shankar Singh v
State, of Jharkhand and Anr. (2011) 3 SCC 654: 2011 (4)
SCR 312 - referred to.
3.2. Identification Parade is a tool of investigation and
SHYAMAL GHOSH v. STATE OF WEST BENGAL
109
is used primarily to strengthen the case of the
A
prosecution on the one hand and to make doubly sure
that persons named accused in 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
B
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 c
given case. [Para 58) [147-8-C]
3.3. Non-identification of the appellant-accused by the
driver of the van is inconsequential in the present case.
Firstly, for the reason that the driver of the van was never
examined as a witness in the court and even his statement
D
under Section 164 CrPC has not been relied upon by any
court while convicting the accused. Secondly, not only
one, 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. The
E
driver was a person who himself was under a threat and
was asked to take the gunny bags for their disposal.
[Para 59] [147-F-G]
4.1. 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
F
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.
G
This provision carves out an exception from general law
that a person is responsible for his own act, as it 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,
H
110
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A 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. [Para
B 64) [155-D-G]
Nand Kishore v. State of Madhya Pradesh (2011) 12
SCC 120: 2011 (7) SCR 1152; Lal/an Rai and Ors. v. State
of Bihar (2003) 1 sec 268: 2002 (4) Suppl. SCR 188;
C Dhamidhar v. State of Uttar Pradesh and Ors. (2010) 7 SCC
759: 2010 (8 ) SCR 173 - relied on.
4.2. 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
D 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
E 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. Thus, all these
acts obviously were in furtherance to the common
F intention of doing away with the deceased, if he failed to
give them Rs. 40,000/- as 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
G other words, each of the accused had common intention.
[Para 65) [155-H; 156-A-D]
H
Case Law Reference:
(2012) 4 sec 122
(1976) 4 sec 288
Relied on
Referred to
Para 33
Para 35
SHYAMAL GHOSH v. STATE OF WEST BENGAL
111
(2003) 10 sec 670
Referred to
Para 35
A
1990 (2) Suppl. SCR 503 Relied on
Para 36
2003 (5) Suppl. SCR 119 Relied on
Para 36
2005 (2) SCR 1132
Relied on
Para 36
B
2010 (10) SCR 262
Relied on
Para 40
2011 (4) SCR 312
Relied on
Para 40
2010 (11) SCR 1064
Referred to
Para 41
(2011) 2 sec 44
Relied on
Para 41
c
(2003) 12 sec 377
Referred to
Para 43
(2001) 15 sec 760
Relied on
Para 46
(201 O) 13 sec 657
Relied on
Para 48
D
2010 (15) SCR 452
Relied on
Para 48
2011 (8) SCR 83
Relied on
Para 50
2008 (15) SCR 468
Referred to
Para 51
E
2011 (1 ) SCR 1104
Referred to
Para 51
2004 (5) Suppl. SCR 1092 Referred to
Para 57
2011 (4) SCR 312
Referred to
Para 57
F
2011 (12) sec 120
Relied on
Para 61
2002 (4) Suppl. SCR 188 Relied on
Para 63
2010 (7) sec 759
Relied on
Para 64
CRIMINAL APPELLATE JURISDICTION : Criminal
G
Appeal No. 507 of 2007.
From the Judgment & Order dated 5.2.2007 of the High
Court at Calcutta in C.R.A. No. 724 of 2005.
H
112
SUPREME COURT REPORTS
[2012) 10 S.C.R.
A
WITH
Crl. Appeal Nos. 1369 of 2007 & 539-540 of 2011.
Pradip Ghosh, J.K. Das, Yadunandan Bansal, Rauf Rahim,
8
Subhasish Bhowick, Tanmay K. Ghosh, Swati Yadav, P.P.
Nayak, Sudarshan Rajan, Md. Qamar Ali, Jayashree
Narasimhan, Abhijit Sengupta, B.P. Yadav, Prakash Kumar,
Chanchal Kumar Ganguli, R.Bhuyan, Raja Chatterjee, Sampa
Sengupta, H.K. Puri for the appearing parties.
C
The Judgment of the Court was delivered by
SWATANTER KUMAR, J. 1. Eight accused, namely,
Panchanan Tarafdar@ Chotka, Uttam Das, Dipak Das @ Mou,
Manoranjan Debnath @ Behari, Bishu Saha @ Chor Bishu,
D
Satyajit Das @ Sadhu, Ganesh Das and Shyamal Ghosh, were
charged with offences under Sections 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
E 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,
F
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
G 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
H
sentence passed by the Trial Court, all the accused preferred
SHYAMAL GHOSH v. STATE OF WEST BENGAL
113
[SWATANTER KUMAR, J.]
five different appeals before the High Court and prayed for
A
setting aside the judgment of the Trial Court and their
consequential 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
B
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 c
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
D
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
E
may notice that even the contentions raised on behalf of
different 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.
F
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,
G
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 Oum Oum Highway. Since he suspected some
H
114
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A
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
B
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 October, 2003
itself, wife of the deceased Smt. Lily Bhattarcharjee, PW4, and
elder brother of the deceased, Arindam Bhattacharjee, PW6,
c 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
D
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
E
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
F
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 Barrackpore Oum Oum Highway near the
Electric Tower and in front of the garden of Tapan Santra.
G 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.
H
7. Since Archideb Bhattacharjee did not return to his home
SHYAMAL GHOSH v. STATE OF WEST BENGAL
115
[SWATANTER KUMAR, J.]
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 Poli:::e Station and lodged
A
B
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 c
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 refused to succumb to this
D
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.
E
8. On 1st October, 2003, the driver of the Maruti Van,
namely, Manik Das was arrested by the Police on the basis of
F
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 Sushi!
G
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
H
116
SUPREME COURT REPORTS
[2012] 10 S.C.R.
A were apprehended at Delhi with the help of the Police at Tilak
Marg Police Station. These three accused persons were
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
B 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.
c 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
D 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 aforeE stated offences and subjected to face trial before the Court of
competent jurisdiction.