TaxTMI 
TaxTMI 
2012 (7) TMI 1143
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....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 Indian Penal Code 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 Indian Penal Code, they were sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ₹ 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 ₹ 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 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 Secti....
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...., 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 there from 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-di....
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....tion. 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 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 wer....
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....rly against accused Shyamal. 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. xi. The statement of the accused under Section 313 of the Code of Criminal Procedure cannot be us....
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....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 clothing. The elder brother of the deceased was employed in a private firm and both of them had built six shop rooms on ....
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....so stated that she had identified the accused persons even at the Police Station. 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 ....
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....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 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 aba....
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....human body into the said car from Goshala field. Thereafter, 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. 26. PW-2 Jhantu Dey, the brother-in-law of th....
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....ed to 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. ....
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....njury 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....
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....d 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. 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 o....
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....s 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 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. and 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. Simila....
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....sses 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. 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 co....
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....s 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 light after certain investigation had been carried out by the Investigating Officer. In the present case, the examination of the interested witnesses was inev....
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....deb Bhattacharjee in 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 b....
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....inal 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 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 ha....
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.... 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. 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 tha....
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....r 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 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 Code of Criminal Procedure. which deals....
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....cution. 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 v. 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. (Vide Mohd. Azad v. State of W.B and State v. Ma....
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....he last seen alive and the 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. 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....
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....ntifying 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 Code of Criminal Procedure 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. 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 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 Code of Criminal Procedure., it is not necessary for us to examine whether the stat....
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....e 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 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 perso....
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....rt 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 Indian Penal Code. In fact, Section 34 Indian Penal Code 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 Indian Penal Code 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 Indian Penal Code. The Court held as under: (SCC 107 10) 10. To apply Section 34 Indian Penal Code 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....
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....mmon 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 686,39) 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 ....
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....own therefore. 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 Ors. ( (2010) 7 SCC 759), it is clear that Section 34 Indian Penal Code 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 Indian Penal Code 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 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 pe....