IMPORTANT POINTS
1. 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.
2. 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.
3. 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.
4. Defect in the investigation by itself cannot be a ground for acquittal.
5. 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 reject the prosecution evidence in its entirety.
6. 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.

Headnote:Indian Penal Code,1860-Sections 302, 201, 379, 411 read with Section 34-Prosecution of accused persons eight in number for causing death of deceased by strangulating his body and thereafter cutting it into pieces and packing the same in gunny bags and abandoning the same at a deserted place-Trial Court while convicting accused persons awarded death sentence to all of them-Appeals thereagainst- High Court, while answering the death reference in the negative, sustained their conviction under Section 302 read with Section 34 IPC, awarding them rigorous imprisonment for life-Appeals-Evidence of prosecution witnesses that on the day of the incident, deceased was killed and his body was disposed of, by cutting the same into pieces, putting it in gunny bags and abandoning these bags at a deserted place-No material or serious contradiction in the statement of witnesses so as to give any advantage to the accused- The accused persons were absconding immediately after the date of the occurrence and could not be arrested despite various raids by the police authorities- No reason to interfere with the judgment of High Court either on merits or on the quantum of sentence- Appeals dismissed. (PARAS 37,38,40,41,59,60,65,66)
        Criminal Trial-Delay in examination of witnesses - Delay in examination of witnesses is a variable factor. -It would depend upon a number of circumstances as non-availability of witnesses, the Investigating Officer being preoccupied 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-. Instantly 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- Investigating Officer attempted raiding the houses of the accused even after cornering the area, but of no avail- Investigating Officer recorded the statements of nearly 28 witnesses-Hence held that Some delay was bound to occur in recording the statements of witnesses whose names came to light after certain investigation had been carried out by Investigating Officer (Para 38)
        Criminal Trial-Defective Investigation- Every discrepancy in investigation does not weigh with the Court to an extent that it necessarily results in acquittal of the accused- 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. - These were the discrepancies/lapses of immaterial consequence (Para 40)
        Criminal Trial-Appreciation of Evidence- 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 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. (Para 47)
        Indian Penal Code,1860-Section 34-Applicability of-The ingredients of more than two persons being present, existence of common intention and commission of an overt act stood established in the instant case-The statements of the witnesses clearly showed 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 theaccused 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 -All these acts obviously were in furtherance to common 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- Each of the accused had common intention-Hence section 34 held to be applicable (Para 65)
       Facts of the Case :
        Accused persons eight in number were prosecuted herein in the instant case for causing death of deceased by strangulating his body and thereafter cutting it into pieces and packing the same in gunny bags and abandoning the same at a deserted place.Trial Court while convicting accused persons awarded death sentence to all of them.OnAppeals thereagainst, High Court, while answering the death reference in the negative, sustained their conviction under Section 302 read with Section 34 IPC, awarding them rigorous imprisonment for life.
        B. Present appeals have been filed against said order of High Court.
       Findings of the Court :
        The Court held that there was no reason to interfere with the judgment of High Court either on merits or on the quantum of sentence. Appeals were dismissed.

JUDGMENT

Swatanter Kumar, J.-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 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 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 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 October, 2003 itself, wife of the

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2012 Supreme(SC) 452

2012 (4) Supreme 481SUPREME COURT OF INDIAA.K. Patnaik & Swatanter Kumar, JJ.Shyamal Ghosh — Appellant versus State of West Bengal — Respondent Criminal Appeal No.507 of 2007 with Criminal Appeal No. 1369 of 2007 and Criminal Appeal Nos. 539540 of 2011Decided on : 11-07-2012

Cases Referred (21)

2012 (4) Supreme 481
SUPREME COURT OF INDIA
A.K. Patnaik & Swatanter Kumar, JJ.
Shyamal Ghosh — Appellant
versus
State of West Bengal — Respondent
Criminal Appeal No.507 of 2007 with Criminal Appeal No. 1369 of 2007 and Criminal Appeal Nos. 539540 of 2011
Decided on : 11-07-2012