LexSHYAMAL GHOSH versus STATE OF WEST BENGAL
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[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,
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