MRINAL DAS & Ors. v. THE STATE OF TRIPURA

Judgment

14 (ADDL.) S.C.R. 411 MRINAL DAS & ORS. V. THE STATE OF TRIPURA (CRIMINAL APPEAL NO. 1994 OF 2009) SEPTEMBER 05, 2011 [P. SATHASIVAM AND H.L. GOKHALE, JJ.] A . B Penal Code, 1860 - s.302 rlw s.34 - Murder - 13 accused- Prayer of A-12 for grant of 'pardon' and to treat him as an 'approver' allowed by trial court - Disclosure made by C approver (A-12), who was examined as PW-6 - Trial Court convicted A-5 and A-11 u/s.302 but acquitted the remaining ten accused - On appeal, High Court set aside acquittal of A-4, A-7, A-9 and A-1 and convicted them u/ss. 302134 and also affirmed conviction of A-5 & A-11 uls.302 - Justification D of - Held: Justified - The statement of approver (PW-6) was confidence inspiring and as rightly pointed out by the High Court, there was nothing wrong in accepting his entire statement - The analysis of statement of various persons, particularly, eye-witnesses clearly strengthen the case of PW- E 6, approver, in all aspects including conspiracy, planning to attack the deceased for his statement about the students' movement, actual incident, role played by the assailants and subsequent events after the gunshot till the death of the deceased -As rightly observed by the trial Court and the High F Court, the ocular evidence of the approver (PW-6) stood corroborated by the medical evidence of PW-14 (the doctor who conducted post mortem) and the post. mortem examination report (Ex. 7) - There was common intention among the accused persons including the six persons G 1 identified by the eye-witnesses - High Court was right in applying s.34 and basing·conviction of six accused persons i.e. A-5, A-11, A-9, A-7, A-4 and A-1. Evidence Act, 1872- s.133 r/w Illustration (b) to s .. 114 - 411 H 412 SUPREME COURT REPORTS (2011] 14 (ADDL.) S.C.R. A Evidentiary value of "approver" and its acceptability with or without corroboration - Held: Though a conviction is not illegal merely because it proceeds on the uncorroborated testimony of an approver, yet the universal practice is not to convict upon the testimony of an accomplice unless it is corroborated in material particulars - Insistence upon corroboration is based on the rule of caution and is not merely a rule of law - Corroboration need not be in the form of ocular testimony of witnesses and may even be in the form of circumstantial evidence. B c D Code of Criminal Procedure, 1973 - ss.306, 307 and 308 - Tender of pardon to approver/accomplice - Power to direct tender of pardon - Held: The principle of tendering pardon to an accomplice is to unravel the truth in a grave offence so that guilt of the other accused persons concerned in commission of crime could be brought home - An accomplice who has been granted pardon uls.306 or s.307 of the Code gets protection from prosecution - When he is called as a witness for the prosecution, he must comply with the condition of making a full and true disclosure of the whole E of the circumstances within his knowledge concerning the offence and to every other person concerned, whether as principal or abettor, in the commission thereof and if he suppresses anything material and essential within his knowledge concerning the commission of crime or fails or F refuses to comply with the condition on which the tender was made and the Public Prosecutor gives his certificate uls.308 of the Code to that effect, the protection given to him can be lifted - Once an accused is granted pardon u/s. 306, he ceases to be an accused and becomes witness for the G prosecution. Code of Criminal Procedure, 1973 - ss. 306, 307 and 308 - Tender of pardon to approver/accomplice - Delay in tendering pardon - Effect of - Held: Pardon can be tendered H at any time after commitment of a case but before the MRINAL DAS & ORS. v. THE STATE OF TRIPURA 413 judgment is pronounced - In the instant case, the approver - A PW-6, submitted his application to become an approver on 16.06.2004 well before the judgment which was delivered on 19.04.2005 - In view of the same, the contention regarding delay on the part of PW-6 is liable to be rejected - Regarding his change of mind, PW-6 asserted that he had decided to B disc!Ose the whole incident voluntarily on the advise of the In er.ass-examination, PW-6 members of his family - explained that since 31.08.2000 (the incident date) till mid of March, 2004, he had been running amok and during the said intervening period, he did not meet any people to express his c mental agony - He asserted that he lost his mental peace as the murder took place before his own eyes and he was also directly involved in the killing - He denied, that he deposed falsely - He also denied that he was provoked that if he turns to be an approver, he would be given a suitable job - A 0 reading of the entire evidence of PW-6 makes it clear that the reason for change of his mind for tendering pardon is acceptable and in tune with the conditions prescribed in ss. 306 and 307 - The trial Judge, who had the liberty of noting his appearance and recorded his evidence, believed his E . version which was rightly accepted by the High Court. Criminal trial - Hostile witness - Appreciation of - Held: Merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable - The evidence of hostile witness can be relied upon at least F up to the extent, he supported the case of prosecution - The evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution G · - However, the Court should be slow to act on the testimony of such a witness, normally, it should look for corroboration .with other witnesses. Criminal Trial - Large number of offenders - Necessity H 414 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A of corroboration - Held: Where a large number of offenders are involved, it is necessary for the Court to seek corroboration, at least, from two or more witnesses as a measure of caution - It is the quality and not the quantity of evidence to be the rule for conviction even where the number B of eye witnesses is less than two. Pena! Code, 1860 - s.34 - Applicability of - Held: The existence of common intention amongst the participants in the crime is the essential element for application of s. 34 and C it is not necessary that the acts of several persons charged with the commission of an offence jointly must be the same or identically similar - In the instant case, from the materials placed by the prosecution, particularly, from the eye witnesses, the common intention can be inferred among the accused persons including the six persons identified by the D eye-witnesses - If the case of the prosecution is considered in the light of the disclosure made by the approver (PW-6), coupled with the statement of eye-witnesses, it is clear that the 13 assailants had planned and remained present on the shore In view of these · of the river to eliminate the deceased - E materials, the High Court was right in applying s.34 /PC and basing conviction of six accused persons. Penal Code, 1860 - ss. 34 and 149 - Distinction between common intention and common object - Discussed. F Appeal - Appeal against acquittal - Interference in appeal against acquittal - Legal position - Discussed. According to the prosecution, as 'T' had stood against the students' agitation against kidnapping of G three students and one labourer by the extremists, the accused persons developed a grudge againt 'T'; that they planned to eliminate 'T' and for th.;t purpose remained stationed on the river shore and when 'T' and his companions disembarked from a boat, A-12 dragged 'T' down and when he fell on the ground, A-5 and A-11 H MRINAL DAS & ORS. v. THE STATE OF TRIPURA 415 shot at him causing him severe bullet injuries and which A ultimately led to his death. There were in all 13 accused persons- A-7, A-4, A-5, A-2, A-9, A-3, A-10, A-11, A-1, A-6, A-8, A-12 and A-13. The trial court framed charges against all the 13 accused persons under Section 302 read with Section 34/1208 IPC and Section 27 of the Arms Act. B During the recording of evidence, A-12 filed an application praying for grant of 'pardon' and to treat him as an 'approver' which was granted by the trial Court. The "approver" (A-12) was examined as PW-6. The trial C.ourt acquitted A-1, A-2, A-3, A-4, A-6, A-7, A-8, A-9, A-10 and A- C 13 and convicted A-5 and A-11 for the offences punishable under Section 302 of the IPC and sentenced them to suffer rigorous imprisonment for life. A-5 and A- 11 .filed appeal in the High Court. The State also filed appeal against the order of acquittal of ten accused 0 persons by the trial Court. High Court dismissed the appeal filed by the convicted accused persons (A-5 and A-11) and partly allowed the appeal filed by the State by setting aside the acquittal of four persons, namely, A-4, A-9, A-7 and A-1 and convicted them under Sections 302/ 34 IPC and sentenced them with imprisonment for life. E Hence the present appeals. Dismissing the appeals, the Court HELD: F Legal position with regard to interference in Appeal against Acquittal:

#1. In an appeal against acquittal in the absence of perversity in the judgment and order, interference by this G Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate ' court, being the ·final court of fact, is fully competent to re-appreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any H 416 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R. A limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal s jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part c of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and E substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed. [Para 8] (439-C-H; 440-A-B] 0 F State of Goa vs. Sanjay Thakran & Anr. (2007) 3 SCC 755 : 2007 (3 ) SCR 507; Chandrappa and Others vs. State G of Karnataka (2007) 4 SCC 415 : 2007 (2) SCR 630; State of Uttar Pradesh vs. Jagram and Others, (2009) 17 SCC 405 : 2008 (2) SCR 721; Sidhartha Vashisht aliaf> Manu Sharma vs. State (NCT of Delhi) (2010) 6 sec 1 : 2010 (4) SCR .103; Babu vs. State of Kera/a, (2010) 9 SCC 189 : 2010 (9) H SCR 1039; Ganpat vs. State of Haryana and Others, (2010) MRINAL DAS & ORS. v. THE STATE OF TRIPURA 417 12 SCC 59 : 2010 (12) SCR 400; $uni/ Kumar A