Paragraph numbers below are the court’s original numbering, recovered from the source text.
34. Then, it was argued that there are certain discrepancies and contradictions in the statement of the prosecution witnesses G in as much as these witnesses have given different timing as to when they had seen the scuffling and strangulation of the deceased by the accused. It is true that there is some variation in the timing given by PW8, PW17 and PW19. Similarly, there is some variation in the statement of PW7, PW9 and PW11. H Certain variations are also pointed out in the statements of PW2, PW4 and PW6 as to the motive of the accused for commission of the crime. Undqubtedly, some minor discrepancies or variations are traceable in the statements of these witnesses. But what the Court has to see is whether these variations are material and affect the case of the prosecution substantially. Every variation may not be enough to adversely affect the case of the prosecution. The variations pointed out as regards the time of commission of the crime are quite possible in the facts of the present case.
Firstly, these witnesses are rickshaw pullers or illiterate or not highly educated persons whose statements had been recorded by the Police. c Their statements in the Court were recorded after more than two years from the date of the incident. It will be unreasonable to attach motive to the witnesses or term the variations of 15- 20 minutes in the timing of a particular event, as a material contradiction. It probably may not even be expected of these 0 witnesses to state these events with the relevant timing with great exactitude, in view of the attendant circumstances and the manner in which the incident took place. To illustrate the irrelevancy of these so called variations or contradictions, one can deal with the statements of PW2, PW4 and PW6. PW4 and PW6 have stated that the deceased had constructed shops along with his brother for the purpose of letting out and it was thereupon that the accused persons started demanding a sum of Rs.40,000/- from the deceased and had threatened him of dire consequences, if their demand was not satisfied.
PW2 has made a similar statement. However, he has stated that Uttam Das and the accused persons had threatened the deceased that if the said money was not paid, they would not allow the deceased to enjoy and use the said shops built by him. This can hardly be stated to be a contradiction much less a material contradiction. According to the witnesses, two kinds of dire consequences were stated to follow, if the demand for payment of money made by the accused was not satisfied. According to PW4 and PW6, they had threatened to kill the deceased while according to PW2, the accused had threatened that they would not permit the accused to enjoy the said property. (2012) 10 S.C.R. A Statements of all fhese witnesses clearly show one motive, i.e., illegal demand of money coupled with the warning of dire consequences to the deceased in case of default. In our view, this is not a contradiction but are statements made bona fide with reference to the conduct of the accused in relation to the B 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/ c 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 D 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, E therefore, could not be taken into consideration by the Court to convict the accused. On the contrary, the accused are entitled to acquittal for these reasons. Reliance has been placed upon State of Orissa v. Brahmananda Nanda [(1976) 4 SCC 288] and Maruti Rama Naik v. State of Maharashtra [(2003) 10 F sec 670).
36. On the contra, the submission on behalf of the State is that the delay has been explained and though the Investigating Officer was cross-examined at length, not even a G suggestion was put to him as to the reason for such delay and, thus, the accused cannot take any benefit thereof at this stage. Reliance in this regard on behalf of the State is placed on Brathi alias Sukhdev Singh v. State of Punjab [(1991) 1 SCC 519) Banti alias Guddu v. State of M.P. [(2004) 1 SCC 414) and H State of UP. v. Satish [(2005) 3 SCC 114).
37. These are the issues which are no more res integra. The consistent view of this Court has been that if the explanation offered for the delayed examination of a particular witness is plausible and acceptable and the Court accepts the same as plausible, there is no reason to interfere with the conclusion arrived at by the Courts. This is the view expressed in the case of Banti (supra). Furthermore, this Court has also taken the view that no doubt when the Court has to appreciate evidence given by the witnesses who are closely related to the deceased, it has to be very careful in evaluating such evidence but the mechanical rejection of the evidence on the sole ground c that it is that of an interested witness would inevitably relate to failure of justice [Brathi (supra)]. In the case of Satish (supra), this Court further held that the explanation offered by Investigating Officer on being questioned on the aspect of delayed examination by the accused has to be tested by the Court on the touchstone of credibility. It may not have any effect on the credibility of the prosecution evidence tendered by other witnesses.
38. The delay in examination of witnesses is a variable factor. It would depend upon a number of circumstances. For example, non-availability of witnesses, the Investigating Officer being pre-occupied in serious matters, the Investigating Officer spending his time in arresting the accused who are absconding, being occupied in other spheres of investigation of the same case which may require his attention urgently and importantly, etc. In the present case, it has come in evidence that the accused persons were absconding and the Investigating Officer had to make serious effort and even go to various places for arresting the accused, including coming from West Bengal to Delhi. The Investigating Officer has specifically stated, that too voluntarily, that he had attempted raiding the houses of the accused even after cornering the area, but of no avail. He had ensured that the mutilated body parts of the deceased reached the hospital and also effected recovery of various items at the behest of the arrested accused.
(2012] 10 S.C.R. A 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 B 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 C interested witnesses was inevitable. They were the persons who had knowledge of the threat that was being extended to the deceased by the accused persons. Unless their statements were recorded, the investigating officer could not have proceeded with the investigation any further, particularly keeping the facts of the present case in mind. Merely because three D witnesses were related to the deceased, the other witnesses, not similarly placed, would not attract any suspicion of the court on the credibility and worthiness of their statements.
39. Some emphasis has been placed by the learned E counsel appearing for the appellants upon some patent defects in the prosecution case and the abnormal conduct of the prosecution witnesses. According to the counsel, it is very unnatural that related witnesses like PW2, PW4 and PW6 had not informed the police when they lodged the missing diary F report with the Police Station that there was demand for money by the accused and that they had threatened the deceased with dire consequences if that demand was not satisfied. Furthermore, it is pointed out that nothing was sent by the Investigating Officer to the Forensic Science Laboratory (FSL) G to provide any scientific link to the commission of the offence or corroboration of the case of the prosecution. The contention is that these are material defects and should normally result in acquittal of the accused.
40. We are not impressed by this contention of the learned counsel appearing for the appellants. We have already noticed above that the question of disbelieving the interested witnesses (family members of the deceased) does not arise. Their statements are reliable and trustworthy. The fact that they did not inform the Police while lodging the missing diary report about the illegal demand for money by the accused persons and that the accused had also threatened the deceased with dire consequences, is not a material omission. All the family members must have been under great mental stress as their husband/brother had not returned home. It is also not factually correct to say that nothing of this kind was mentioned by these c related witnesses to the police at any stage. The Investigating Officer, PW28, had specifically stated in his statement· Jhantu Dey stated to me that on 15.8.03 Uttam Das, Dipak Das, Manoranjan Debnath, Ganesh, Chotka, Chor Bisu, Shyamal, Sadhu, demanded Rs.40,000/- from Archideb Bhattacharjee in his presence". Of course, there are certain discrepancies in the investigation inasmuch as the Investigating Officer failed to send the blood stained gunny bags and other recovered weapons to the FSL, to take photographs of the shops in question, prepare the site plan thereof, etc. Every discrepancy in investigation does not weigh with the Court to an extent that it necessarily results in acquittal of the accused. These are the discrepancies/lapses of immaterial consequence. In fact, there is no serious dispute in the present case to the fact that the deceased had constructed shops on his own land. These shops were not the site of occurrence, but merely constituted a relatable fact. Non-preparation of the site plan or not sending the gunny bags to the FSL cannot be said to be fatal to the case of prosecution in the circumstances of the present case. Of course, it would certainly have been better for the prosecution case if such steps were taken by the Investigating Officer. In C. Muniappan v. State of Tamil Nadu [(2010) 9 SCC 567], this Court has clearly stated the principle that the law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed · or negligent investigations or to the omissions or lapses by A perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Similar view was taken by this Court in the case of Sheo Shankar Singh v. State of Jharkhand and Another [{2011) 3 SCC 654) wherein the Court held that failure of the investigating agency B to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. As to what should be the weight attached to such an identification is a matter which the court would determine in the peculiar facts and circumstances of each case. Similarly, failure c to make reference to the FSL in the circumstances of the case is no more than a deficiency in the investigation of the case and such deficiency does not necessarily lead to a conclusion that the prosecution case is totally unworthy of credit.
41. As we are discussing the conduct of the prosecution D witnesses, it is important for the Court to notice the conduct of the accused also. The accused persons were absconding immediately after the date of the occurrence and could not be arrested despite various raids by the police authorities. The Investigating Officer had to go to different places, i.e., Sodhpur E and Delhi to arrest the accused persons. It is true that merely being away from his residence having an apprehension of being apprehended by the police is not a very unnatural conduct of an accused, so as to be looked upon as absconding per se where the court would draw an adverse inference. Paramjeet F Singh v. State of Uttarakhand [{2010) 10 SCC 439) is the judgment relied upon by the learned counsel appearing for the appellant. But we cannot overlook the fact that the present case is not a case where the accused were innocent and had a · reasonable excuse for being away from their normal place of G residence.
In fact, they had left the village and were not available for days together. Absconding in such a manner and for such a long period is a relevant consideration. Evan if we assume that absconding by itself may not be a positive circumstance consistent only with the hypothesis of guilt of the accused H because it is not unknown that even innocent persons may run . away for fear of being falsely involved in criminal cases, but in the present case, in view of the circumstances which we have discussed in this judgment and which have been established by the prosecution, it is clear that absconding of the accused not only goes with the hypothesis of guilt of the accused but also points a definite finger towards them. This Court in the case of Rabindra Kumar Pal @ Dara Singh v. Republic of India [(2011) 2 sec 490], held as under: "88. The other circumstance urged by the prosecution was that A-3 absconded soon after the incident and avoided c arrest and this abscondence being a conduct under Section 8 of the Evidence Act, 1872 should be taken into consideration along with other evidence to prove his guilt. The fact remains that he was not available for quite some time till he was arrested which fact has not been disputed by the defence counsel. We are satisfied that before accepting the contents of the two letters and the evidence of PW 23, the trial Judge afforded him the required opportunity and followed the procedure which was rightly accepted by the High Court."
42. Then it was also contended that circumstantial evidence is a very weak evidence and in the present case, the complete chain having not been established, the accused are entitled to acquittal. This argument again does not impress us. Firstly, we have discussed in some details that this is not purely a case of circumstantial evidence. There are eye-witnesses who had seen the scuffling between the deceased and the accused and the strangulation of the deceased by the accused persons and also the load1t ig of the mutilated bcdy parts 0~ the deceased contained in gunny bags into Maruti Van. Evidence establishing the 'last seen together' theory and the fact that after altercation and strangulation of the deceased which was witnessed by PWB, PW17 and PW19, the body of the deceased was recc.vered in piecPs in i:;resence of the wi.nesses, have been fully established. To a very limited extent, [2012) 10 S.C.R. A it is a case of circumstantial evidence and the prosecution has proved the complete chain of events. The gap between the time when the accused persons were last· seen with the deceased and the discovery of his mutilated body is quite small and the possible inference would be that the accused are responsible B for commission of the murder of the deceased. Once the last seen theory comes into play, the onus was on the accused to explain as to what happened to the deceased after they were together seen alive. The accused persons have failed to render any reasonable/plausible explanation in this regard. c
43. Even in the cases of circumstantial evidence, the Court has to take caution that it does not rely upon conjectures or suspicion and the same should not be permitted to take the place of legal proof. The circumstances from which the conclusion of guilt is to be drawn should in the first instance be D fully established and all the facts so established should be consistent only with the hypothesis of guilt of the accused. The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. {Ref. Mousam Singha Roy and E Others v. State of WB. [(2003) 12 SCC 377]].
44. Accused Ganesh, in his statement under Section 313 Cr.P.C., admitted the fact that he was absconding even till the charge-sheet was filed in the Court declaring him absconding F and thereafter, he surrendered at the Police Station after charges were framed. On a specific question as to what he had to say in this regard, except saying that it was correct, he gave no further explanation. This piece of evidence points towards lack of bona tides on the part of this accused. It may also be noticed that all the accused only stated that they did not know G 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 c only named six accused persons but it is also to be noted that when he identified the accused persons present in the Court, he specifically stated "the persons who were doing the mischief in that night are present in Court today (identified)". PW17 had seen the altercation immediately preceding the strangulation of the deceased and he has clearly named Shyamal Ghosh in his statement. Of course, this witness also had named six persons and according to this witness, the accused persons had asked him to leave the place which he then did. PW19 had also similarly named six persons while not specifically naming the accused Shyamal but he also stated in his examination, "The persons whom I saw in that night all are present in Court today (identified)".
46. This clearly shows that all the three eye-witnesses to altercation and strangulation named some of the accused persons while did not name others specifically. However, they identified all the accused persons in the Court as the persons who were present at the time of the mischief, altercation and strangulation of the deceased. This Court in the case of Tika Ram v. State of Madhya Pradesh [(2007) 15 SCC 760), while rejecting' the argument that the name of the accused is not mentioned in the FIR held that this would not by itself be sufficient to reject the prosecution case as against this accused. The court further held that where the prosecution is able to establish its case, such omission by itself would not be sufficient [2012) 10 S.C.R. A to give benefit of doubt to the accused. In the present case, as already discussed, the prosecution has been able to establish its case beyond reasonable doubt.
47. From the above discussion, it precipitates that the discrepancies or the omissions have to be material ones and then alone, they may amount to contradiction of some serious consequence. Every omission cannot take the place of a contradiction in law and therefore, be the foundation for doubting the case of the prosecution. Minor contradictions, inconsistencies or embellishments of trivial nature which do not C 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 D 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 E 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 F 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 G 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 Cr.P.C. which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1 ), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context shall be a question :0f fact. A bare reading of this explanation reveals that if a significant omission is made in a statement of a witness under Section 161 Cr.P.C., the same may amount to contradiction and the question whether· it so amounts is a question of fact in each case. (Sunil Kumar Sambhudaya/ c . Gupta (Dr.) Vs. State of Maharashtra [(2010) 13 SCC 657] and Subhash Vs. State of Haryana [(2011) 2 SCC 715].
49. The basic elemen~which is unambiguously clear from the explanation to Section 1-.62 CrPC is use of the expression 'may'. To put it aptly, it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. If the legislative intent was to the contra, then the legislature would have used the expression 'shall' in place of the word 'may'. The word 'may' introduces an element of discretion which has t.o 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 questk>n of fact which is to be determined Y(ith reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is a contradiction or material contradiction which renders the entire evidence of the witness untrustworthy and affects the ease of the prosecution materially.
50. Then, it is also contended and of course with some vehemence that where the prosecution is relying upon the last seen theory, it must essentially establish the time when the A accused and deceased were last seen together as well as the time of the death of the deceased. If these two aspects are not established, the very application of the 'last seen theory' would be impermissible and would create a major dent in the case of the prosecution. In support of this contention, reliance is B 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 C 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 Yusufs case (supra) while referring to D the case of Mohd. Azad @ Samin v. State of West Bengal [(2008) 15 SCC 449] and State through Central Bureau of Investigation Vs. Mahender Singh Dahiya [(2011) 3 SCC 109], h_eld as.under:- . E "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 WB and State v. Mahender Singh Dahiya)"
52. The reasonableness of the time gap is, therefore, of some significance. If the time gap is very large, then it is not only difficult but may even not be proper for the court to infer G that the accused had been last seen alive with the deceased and the former, thus, was responsible for coi:nmission of the offence. The purpose of applying these principles, while keeping the time factor in mind, is to enable the Court to examine that where the last seen together and the time when H. the deceased was found dead is short, it inevitably leads to the SHYAMAL GHOSH v. STAIE OF WEST BENGAL [SWATANTER KUMAR, J.] inference that the accused person was responsible for commission of the crime and the onus was on him to explain how the death occurred.
53. In the facts of the present case, the factor of time does not play such a significant role because it is a case where there were eye-witnesses to the strangulation of the deceased by the accused, and therefore, it may not be expected of the prosecution to show the time of last seen and death, by leading independent evidence. PW-17 is the witness to the altercation between the accused and the deceased. PW-8 is the witness to the strangulation of the deceased by the accused persons. Besides, PW-7, PW-9 and PW-11 are witnesses to the loading of the gunny bags containing human body parts in the Maruti Van by the accused. Thus, these facts have been established by independent witnesses. None of these witnesses is a relation or a witness inimical towards the accused. It has come on record that the occurrence had taken place on 29th September, 2003 at midnight. There may be some variation (5 to 10 minutes) in the time stated by different witnesses as to when the occurrence took place. From their statements, it is clear that by and large, they have given approximately the same time with reasonable variation, which is primarily for the reason that the accused persons and deceased were seen by the witnesses at different places. We have already held that these discrepancies do not amount to any material contradiction. Thus, the time of death stands clearly established between 11.30 pm to 12.00 am on 29th/30th September, 2003. Thereafter, it was the act of disposal of the body of the deceased which attracts the offence under Section 201 IPC.
54. As far as the death of the deceased is concerned, there was hardly any time gap between the two incidents, i.e. the last seen alive and the fact of death of the deceased becoming known. All 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. [2012) 10 S.C.R.
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 B 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 C witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of ot.her 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 D test the memory of the witnesses based upon first impression and also to enable the prosecution to .decide whether all or any of them could be cited as eyewitnesses of the crime.
57. It is equally correct that the CrPC does not oblige the E investigating agency to necessarily hold the Test Identification Parade. Failure to hold the test identification parade while in police custody, does not by itself render the evidence of identification in court inadmissible or unacceptable. There have been numerous cases where the accused is identified by the F witnesses in the court for the first time. One of the views taken is that identification in court for the first time alone may not form the basis of conviction, but this is not an absolute rule. The purpose of the Test Identification Parade is to test and strengthen the trustworthiness of that evidence. It is accordingly G considered a safe rule of prudence to generally look for corroboration of the sworn testimony of the witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence is, however subjected to exceptions. Reference can H be made to Munshi Singh Gautam v. State of M.P.[(2005) 9 SCC 631], Sheo Shankar Singh v. State of Jharkhand and Anr. [(2011) 3 sec 654].
58. Identification Parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named accused in the case are actually the culprits. The Identification Parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a C relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case.
59. In the present case, certainly Shyamal Ghosh, accused was not identified at the time of Test Identification Parade held on 28th November, 2003. However, Sadhu @ Satyajit Das was identified. PW-14 is the learned Judicial Magistrate who had recorded the statement of Manik Das under Section 164 CrPC as well as held the Identification Parade on 28th November, 2003. Other accused were neither subjected to Identification Parade nor could the question of identifying them arise. The mere fact that Shyamal Ghosh accused was not identified by Manik Das is not of great relevancy in the present case. Firstly, for the reason that Manik Das was never examined as a witness in the court and even his statement under Section 164 CrPC has not been relied upon by any court while convicting the accused. Secondly, not only one, 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 G threat and was asked to take the gunny bags for their disposal near the Barrackpore Oum Oum 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 H A finding that prosecution has been able to prove its case beyond reasonable doubt on the strength of the oral and documentary evidence produced by the prosecution, without taking into consideration the statement of Manik Das made under Section 164 CrPC., it is not necessary for us to examine whether the B statement of Manik Das under Section 164 CrPC is admissible in evidence and what its evidentiary value is. The question of law is whether the statement recorded under Section 164 CrPC can be relied upon by the prosecution in a given case or not. We leave this question open. c
61. Lastly, it was contended that the provisions of Section 34 IPC are not attracted in the present case as the prosecution has not been able to prove either common intention or participation of the accused persons in the commission of the crime. Resultantly, they could not have been held guilty of the D offence under Section 302 read with Section 34 IPC. Before we discuss the evidence relevant to this aspect of the case, let us examine the law in relation to ingredients and application of Section 34 IPC.
62. In a very recent judgment of this court in the case Nand Kishore v. State ·of Madhya Pradesh [(2011) 12 SCC 120), this Court discussed the ambit and scope of Section 34 IPC as well as its applicability to a given case as under : "20. A bare reading of this section shows that the section could be dissected as follows: (a) Criminal act is done by several persons; (b) Such act is done in furtherance of the common intention of all; and (c) Each of such persons is liable for that act in the same manner as if it were done by him alone. In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved, then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 IPC must be done by several persons. The emphasis in this part of the section is on the word "done". It only flows from this that before a person can be convicted by following the provisions of Section 34, that person must have done something along with other c persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 must, therefore, be a participant in the joint act which is the result of their combined activity. 21. Under Section 34, every individual offender is associated with the criminal act which constitutes the offence both physically as well as mentally i.e. he is a participant not only in what has been described as a common act but also what is termed as the common intention and, therefore, in both these respects his individual role is put into serious jeopardy although this individual role might be a part of a common scheme in which others have also joined him and played a role that is similar or different. But referring to the common intention, it needs to be clarified that the courts must keep in mind the fine distinction between "common intention" on the one hand and "mens rea" as understood in criminal jurisprudence on the other. Common intention is not alike or identical to mens rea. The latter may be 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 c persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it was done by him alone. If the common intention leads to the commission of the criminal offence charged, each one of the persons sharing the common intention is constructively liable for the criminal act done by one of them. (Refer to Brathi v. State of Punjab.) 23. Another aspect which the court has to keep in mind while dealing with such cases is that the common intention or state of mind and the physical act, both may be arrived at the spot and essentially may not be the result of any predetermined plan to commit such an offence. This will always depend on the facts and circumstances of the case, like in the present case Mahavir, all alone and unarmed went to demand money from Mahesh but Mahesh, Dinesh and Nand Kishore got together outside their house and as is evident from the statements of the witnesses, they not only became aggressive but also committed a crime and went to the extent of stabbing him over and over again at most vital parts of the body puncturing both the heart and the lung as well as pelting stones at him even when he fell on the ground.
But for their participation and a clear frame of mind to kill the deceased, Dinesh probably would not have been able to kill Mahavir. The role attributable to each one of them, thus, clearly demonstrates common intention and common participation to achieve the object of killing the deceased. In other words, the criminal act was done with the common intention to kill the.deceased Mahavir. The trial court has rightly noticed in its judgment that all the accused persons coming together in the night time and giving such serious blows and injuries with active participation shows a common intention to murder the deceased. In these circumstances, the conclusions arrived · at by the trial court and the High Court would not call for any interference. 24. The learned counsel appearing for the appellant had relied upon the judgment of this Court in Shivalingappa Kal/ayanappa v. State of Kamataka to contend that they could not be charged or convicted for an offence under Section 302 with the aid of Section 34 IPC.
The said judgment has rightly been distinguished by the High Court in the judgment under appeal. In that case, the Supreme Court had considered the role of each individual and recorded a finding that there was no common object on the part of the accused to commit murder. kl that case, the Court was primarily concerned with the common object c falling within the ambit of Section 149 IPC. In fact, Section 34 IPC has not even been referred to in the aforereferred judgment of this Court. 25. Another case to which attention of this Court was invited is Jai Bhagwan v. State of Haryana. In that case also, the Court had discussed the scope of Section 34 IPC and held that common intention and participation of tne accused in commission of the offence are the ingredients which should be satisfied before a person could be convicted with the aid of Section 34 IPC. The Court held as under: {SCC p. 107, para 10) "10. To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (1) common intention and (ii) participation of the accused in the commission of F an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case." 26.
The facts of the present case examined in the light of the above principles do not leave any doubt in our minds that all the three accused had a common intention in commission of this brutal crime. Each one of them participated though the vital blows were given by Dinesh s Dhimar. But for Mahesh catching hold of the arms of the deceased, probably the death could have been avoided. Nand Kishore showed no mercy and continued pelting stones on the deceased even when he collapsed to the ground. The prosecution has been able to establish the c charge beyond reasonable doubt."
63. In the case of Lal/an Rai and Others v. State of Bihar [(2003) 1 SCC 268), this Court noticed the dominant feature for attracting the applicability of Section 34 IPC and dealt with the case where the contention was that several persons may D have similar intention, yet they may not have common intention in furtherance to which they participated in an action. The court noticed as under:- "17. In para 44 of the judgment in Suresh this Court (the majority view) stated: (SCC pp. 689-90) "44. Approving the judgments of the Privy Council in Barendra Kumar Ghosh and Mahbub Shah cases a three-Judge Bench of this Court in Pandurang v. State of Hyderabad held that to attract the applicability of Section 34 of the Code the prosecution is under an obligation to establish that there existed a common intention which requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of all.
This Court had in mind the ultimate act done in furtherance of the common intention. In the absence of a pre- arranged plan and thus a common intention even if several persons simultaneously attack a man and each one of them by having his individual intention, namely, the intention to kill and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section. In a case like that each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any or the other. The Court emphasised the sharing of the common intention and not the individual acts of the persons constituting the crime. Even at the cost of repetition it has to be emphasised that for proving the c common intention it is necessary either to have direct proof of prior concert or proof of circumstances which necessarily lead to that inference and 'incriminating facts must be incompatible with the innocence of the accused and incapable of explanation or any other reasonable hypothesis'.
Common intention, arising at any time prior to the criminal act, as contemplated under Section 34 of the Code, can thus be proved by circumstantial evidence." 18. In Suresh this Court while recording the dominant feature for attracting Section 34 has the following to state: (SCC p. 686, para 39) "39. The dominant feature for attracting Section 34 of the Indian Penal Code (hereinafter referred to as 'the Code') is the element of participation in absence resulting in the ultimate 'criminal act'. The 'act' referred to in the later part of Section 34 means the ultimate criminal act with which the accused is charged of sharing the common intention. The accused is, therefore, made responsible for the ultimate criminal act done by several persons in furtherance of the common intention of all. The section does not envisage the c separate act by all the accused persons for becoming responsible for the ultimate criminal act.
If such an interpretation is accepted, the purpose of Section 34 shall be rendered infructuous." 19. For true and correct appreciation of legislative intent in the matter of engrafting of Section 34 in the statute-book, one needs to have a look into the provision and as such Section 34 is set out as below: "34. Acts done by several persons in futtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." 20. A plain look at the statute reveals that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result. It is trite to record that such consensus can be developed at the spot. The observations above obtain support from the decision of this Court in Ramaswami Ayyangar v. State of T.N. 21. In a similar vein the Privy Council in Barendra Kumar Ghosh v. King Emperorstated the true purport of Section 34 as below: (AIR p. 6) "[T]he words of Section 34 are not to be eviscerated by reading them in this exceedingly limited sense.
By Section 33 a criminal act in Section 34 includes a series of acts and, further, 'act' includes omission to act, for example, an omission to interfere in order to prevent a murder being done before one's very eyes. By Section 37, when any offence is committed by means of several acts whoever intentionally cooperates in the commission of that offence by doing any one of those acts, either singly or jointly with any other person, commits that offence. Even if the appellant did nothing as he stood outside the door, it is to be remembered that in crimes as in other things 'they also serve who only stand and wait'." 22. The above discussion in fine thus culminates to the effect that the requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused – though the same however depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor."
64. Upon analysis of the above judgments and in particular the judgment of this Court in the case of Dharnidhar v. State o of Uttar Pradesh and Others [(2010) 7 SCC 759], it is clear that Section 34 IPC applies where two or more accused are present and two factors must be e.stablished i.e. common intention and participation of the accused in the crime. Section 34 IPC moreover, involves vicarious liability and therefore, ifthe 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 persons being present, existence of common intention and commission of an overt act stand established in the present case. The statements of the witnesses clearly show that all the eight accused were [2'012} 10 S.C.R. A present at the scene of occurrence. They had demanded money and extended threat of dire consequences, if their demand was not satisfied. Thereafter, they had altercation with the deceased and the deceased was strangulated by the accused person·s and then his body was disposed of by cutting it into pieces and 8 packing the same in gunny bags and abandoning the same at a deserted place near the Barrackpore Oum Oum Highway. Thus, all these acts obviously were in furtherance to the common intention of doing away with the deceased, if he failed to give them Rs. 40,000/- as demanded. The offence was committed C wjth common intention and collective participation. The various acts were performed by different accused in presence of each 9ne of them. In other words, each of the accused had common intention. Thus, we find that the argument on the application of Section 34 IPC advanced on behalf of the accused is without any substance.
66. For the reasons afore-stated, we see no reason to interfere with the judgment of the High Court either on merits or on the quantum of sentence. Therefore, the appeals are dismissed. K.K.T. Appeals dismissed.