Mr. Sumit Chowdhury @ Babai vs State Of Tripura

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2026:THC:717-DB




HIGH COURT OF TRIPURA
AGARTALA
CRL.A(J) NO.10 OF 2026

Mr. Sumit Chowdhury@Babai,
S/o- Sri Sishir Kanti Chowdhury,
R/o-Ramthakur Road,
Near Udiyaman Sangha,
P.S.- East Agartala,
District West Tripura.
…… Appellant ( s )

Versus
The State of Tripura.


....... Respondent ( s )

For the Appellant(s) : Mr. Milon Mukharjee, Sr. Advocate.
Mr. Bibhal Nandi Majumder, Sr. Advocate.
Mr. Biswajit Manna, Advocate.
Mr. Dhruba Jyoti Saha, Advocate.
Mr. Somanta Roy, Advocate.
Mr. Monoswaee. Dey, Advocate.
Mr. Dipankar Das, Advocate.
Mr. Raunak Chakraborty, Advocate.
Mr. Vibek Deb, Advocate.

For the Respondent(s) : Mr. R. Datta, P.P.
CRL.A(J) NO.18 OF 2026

Sri Sumit Banik@ Bapi,
S/o, Sri Naresh Chandra Banik,
Of Ramthakur Road, College Tilla, Adarsha Palli,
P.S.- East Agartala,
District-West Tripura
…… Convict Appellant ( s )

Versus

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The State of Tripura.

....... Respondent ( s )

For the Appellant(s) : Mr. Subrata Sarkar, Sr. Advocate.
Mr. K. Dhirendra Singha, Advocate.
Ms. Ayesha Saha Hirawat, Advocate.
Mr. Dhiman Gope, Advocate.
Ms. Megha Sarkar, Advocate.

For the Respondent(s) : Mr. R. Datta, P.P.

Date of hearing : 19.05.2026 and 20.05.2026

Date of delivery of
Judgment & Order : 26/05/2026

Whether fit for reporting : YES.


HON’BLE JUSTICE DR. T. AMARNATH GOUD
HON’BLE MR. JUSTICE S. DATTA PURKAYASTHA
J U D G M E N T & O R D E R
Dr. T. Amarnath Goud, J.

1. Both these present appeals have been filed by the accused-
appellants herein challenging the Judgment and Orders of conviction and
sentence dated 02.06.2023 and 03.06.2023 passed in Case No. ST.(T-1) 103 of
2019. The case against both the accused-appellants in Crl. A.(J) No. 10 of 2026
and Crl. A.(J) No. 18 of 2026 arises out of West Agartala Police Station Case
No. 172 of 2019 dated 04.08.2019, under Sections 307/326/34 of the Indian
Penal Code (in short, „IPC‟).
2. It is pertinent to mention that the FIR was initially registered
under Sections 307/326/34 of the IPC. Thereafter, upon the death of the victim
on 16.08.2019, the offence under Section 302 of IPC was added.
3. The brief facts of the case are that, on 04.08.2019, one Smt.
Ranjana Das (PW-1) appeared at West Agartala Police Station and lodged a

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written complaint with the Officer-in-Charge alleging, inter alia , that on
02.08.2019 her son, namely Bodhisattwa Das, who was a Branch Manager of
UCO Bank, Dharmanagar Branch, came to Agartala from Dharmanagar with a
view to travel to Kolkata for official work. On the next day, i.e., on 03.08.2019,
at about 12:00 midnight, when her son did not return home, she called him on
his mobile phone, and he informed her that he would return shortly. As he did
not return even after some time, she again called him at about 1:00 a.m. (on
04.08.2019), and at that time she only heard sounds like “ GB, GB ”.
4. On hearing this, she, along with other relatives, rushed to
GBP Hospital and found Bodhisattwa lying unconscious with multiple stab
injuries on different parts of his body, and his intestines had almost protruded
from his abdomen. In the written complaint, it was further stated that she learnt
that, in the intervening night of 03/04.08.2019 at about 00:50 hours, near
Jackson Gate, Agartala, in front of Sarada Medical Hall, one Mr. Sumit, son of
the proprietor of Kalika Jewellers, along with Sueb Miah and others, attacked
her son with broken wine bottles and caused severe bleeding injuries with the
intention to kill him, and he was thereafter admitted to GBP Hospital in a
critical condition.
5. On the basis of the said complaint, West Agartala P.S. Case
No. 172 of 2019 dated 04.08.2019 was registered under Sections 307/326/34
IPC and was entrusted to SI Suman Ullah Kazi for investigation. Upon
completion of investigation, a charge sheet was submitted against the accused
persons, namely, Sumit Chowdhury @ Babai, Omar Sharif @ Sueb, Sumit
Banik @ Bapi, and Sukanta Biswas vide Charge Sheet No. 73 of 2019 under
Section 302/34 IPC before the Court of the learned Chief Judicial Magistrate,
West Tripura, Agartala, to face trial.
6. The Trial Court examined on behalf of the prosecution
P.W.-1 to P.W.-56 and marked Exbts- No.1 to 27/1 and also material objects
under seizure.

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7. After hearing both sides, the learned trial court delivered the
judgment of conviction and order of sentence dated 02.06.2023 and 03.06.2023
respectively in the following manner: :-
“There is no doubt that this case does not come within the purview of the
rarest of the rare cases. Thus, taking into notice the facts and circumstances of
the case, I am of the view that sentence of imprisonment for life along with fine
of Rs.50,000/-, each, for the offence committed by the convicts will suffice to
render proper justice in this case.
Accordingly, the convicts namely Sumit Chowdhury @ Babai, Sumit Banik @
Bapi, Sukanta Biswas @ Bapi and Omar Sharif @ Sueb @ Shoiab Miah are
hereby sentenced to suffer rigorous imprisonment for life U/S 302 of Indian
Penal Code read with Section 34 of IPC.
The convicts are also sentenced to pay fine of Rs.50,000/-, each, and in default
of payment, to suffer rigorous imprisonment for further 6 (six) months:
The pre-conviction detention served by the convicts during the police
investigation and trial shall be allowed to set off against the term of
imprisonment imposed upon the convicts as per provision of Section 428 of the
Code of Criminal Procedure.”
8. Aggrieved thereby the appellants herein have filed these
present appeals.
9. The appellant in Crl. A.(J) No. 10 of 2026, namely Mr.
Sumit Chowdhury @ Babai, is accused No. 1 in FIR No. 2019/WAG/172 and
was tried as such in Sessions Case No. S.T.(T/1) 103 of 2019.
10. The appellant in Crl. A.(J) No. 18 of 2026, namely Mr.
Sumit Banik @ Bapi, was not named in the FIR, but his name appeared
subsequently in the charge sheet, and he was shown as an accused in Sessions
Case No. S.T.(T/1) 103 of 2019.
11. Accused No. 4, namely Mr. Omar Sharif @ Sueb @ Shoiab,
in Sessions Case No. S.T.(T/1) 103 of 2019, preferred Criminal Appeal (Jail)
No. 57 of 2023 against the Judgment and Orders of conviction and sentence
dated 02.06.2023 and 03.06.2023 before this Court. Upon consideration of the
case in its entirety and after hearing both sides, this Court on 01.07.2025
dismissed the appeal and affirmed the judgment of the trial court.

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12. Subsequently, accused No. 1, namely Sri Sumit Chowdhury
@ Babai, preferred Crl. A.(J) No. 10 of 2026, and accused No.2 Sri Sumit
Banik @ Bapi preferred Crl. A.(J) No. 18 of 2026.
13. Since both the appeals arise out of the same Judgment and
Orders of conviction and sentence dated 02.06.2023 and 03.06.2023, and
involve common questions of fact and law, with the consent of both sides, they
were heard together and are being disposed of by this common judgment.
14. Heard Mr. Milon Mukherjee, learned Senior Counsel, along
with Mr. B.N. Majumder, learned Senior Counsel, assisted by Mr. D.J. Saha,
Mr. S. Sarkar, Mr. M. Dey, Mr. S. Roy, Mr. D. Das, Mr. R. Chakraborty, and
Mr. V. Deb, learned counsel appearing for the appellant in Crl. A.(J) No. 10 of
2026 and Mr. S. Sarkar, learned Senior Counsel, assisted by Ms. Ayesha Saha
Hirawat, Mr. K. Dhirendra Singha, Mr. D. Gope, and Ms. M. Sarkar, learned
counsel appearing for the appellant in Crl. A.(J) No. 18 of 2026. Also heard Mr.
R. Datta, learned Public Prosecutor, appearing for the State-respondent.
15. Mr. Milon Mukherjee, learned Senior Counsel, along with
Mr. B.N. Majumder, learned Senior Counsel, arguing for the appellant in Crl.
A.(J) No. 10 of 2026, submitted that the FIR cannot be trusted. It was pointed
out that while information was allegedly given to the Fire Service, the phone
number of the caller was never traced, nor was the caller, one Ranjan Das (as
mentioned by PW-15), ever examined by the prosecution. Furthermore, the
Fireman who first arrived at the spot on 04.08.2019 was not brought before the
Court. There is also a significant mismatch regarding the timing of the ejahar;
the discrepancies between the statements of PW-1 (the mother-complainant)
and the police officials suggest that the complaint received at the hospital could
not have been the same document signed at the police station. Evidence of
P.W.-2, eye-witness is unreliable due to his conduct. Despite being a childhood
friend of the victim, PW-2 neither informed the authorities nor rendered any
assistance to the victim while he lay bleeding. It was further emphasized that,

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according to PW-2‟s own statement, the role of the present accused-appellants
Mr. Sumit Chowdhury and Mr. Sumit Banik was limited strictly to " fist and
blows ." He categorically stated that it was the other convict, Omar Sharif @
Sueb, who stabbed the victim with a sharp knife. Since the medical report
confirms death was caused solely by sharp cutting injuries and not by fist
blows, the conviction under Section 302 IPC against these appellants cannot be
sustained. Furthermore, PW-3, whose shop is located at the place of occurrence,
stated in cross-examination that there was no light at the time of the incident,
casting doubt on the identification of the assailants. PW-11, the medical doctor,
who deposed that the patient was conscious but he was " disoriented ," meaning
he had lost his sense of direction. With a critical blood pressure of 60/40, it is
also stated in such deposition that all the injuries were cut injuries, inflicted
solely by Mr. Omar Sharif@sueb@Shoib. Therefore, Section 302 IPC is not
attracted in the present case. At most, Section 323 read with Section 34 IPC
could be considered, especially since Section 34 requires a " prior meeting of
m inds", which is absent here as the incident was a sudden altercation. The
appellants have already suffered over six years of imprisonment, which is far
beyond the maximum punishment for simple hurt.
16. In continuation, Mr. B.N. Majumder, learned Senior
Counsel, challenged the disclosure statement of the co-accused, Omar Sharif.
He submitted that this statement was recorded by an Executive Magistrate and
not a Judicial Magistrate, which is a violation of the mandatory provisions of
Section 164 of the Cr.P.C. As per settled law, a confession made in police
custody is inadmissible under Section 26 of the Evidence Act unless made in
the immediate presence of a Judicial Magistrate. Learned Senior Counsel
further argued that the prosecution failed to prove the use of beer bottles as
weapons. Although PW-2 admitted that he and the victim were consuming beer
prior to the incident, there was no blood found on the broken bottles during the
SFSL examination. The story of " broken beer bottles " mentioned by PW-1 in
the FIR stands uncorroborated by her own testimony in Court. Furthermore, the

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medical evidence suggests the crime was on 04.08.2019 and the victim died on
16.08.2019 due to „ Septicemia ‟, a bacterial infection. It was argued that this was
a result of medical negligence or improper intervention rather than the injuries
themselves. The dying declaration recorded via video is also contested, as PW-
11 (and later PW-32) established that the victim was " disoriented " and not in a
" fit state of mind " to make a credible statement. Highlighting that there was no
prior enmity, learned Senior Counsel urged the Court to allow the appeal and
set aside the conviction, as the act of merely complaining to Omar Sharif about
their friend Sukanta Biswas- co-accused being beaten by deceased does not
amount to instigation for murder.
To support his argument on the point of accused herein
complaining to the convict- Omar Sharif@Sueb about the incident does not
amount of instigation, learned Sr. counsel relied upon Para-2 of the Judgment of
Hon‟ble Supreme Court reported in 1998 CRI.L.J. 4590 titled as Ajay Sharma
Vs. State of Rajasthan dated 15.09.1998 .
Stating thus, learned Sr. counsel urged this Court to
allow this appeal by quashing the impugned Judgment and order of conviction.
17. Mr. Subrata Sarkar, learned Senior Counsel, assisted by Ms.
Ayesha Saha Hirawat, appearing for the appellant in Crl. A.(J) No. 18 of 2026,
submitted that the name of the appellant, Sumit Banik @ Bapi, is conspicuously
absent from the FIR. This clearly indicates that at the time of lodging the
complaint, the complainant-mother had knowledge about the non-involvement
of the present appellant. Since the complainant came to know about the incident
from PW-2(eye-witness), and the name of Sumit Banik @ Bapi was not
mentioned by PW-2 while narrating the incident to the complainant. It proves
that the present appellant has been roped in at a belated stage and was not
present or involved at the initial instance. It was further submitted that there
was no premeditation on the part of both the appellants in these appeals. From
the chronology of events, it is evident that the incident occurred when PW-2

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and the victim were having beer. The appellants herein along with Sukanta
Biswas arrived at the spot in a car, and an altercation broke out between PW-2
and Sukanta Biswas co-accused, who was a traffic inspector, due to the
defacing of the shop by the latter by urinating. Upon seeing the altercation, the
appellants came down from the car. Thereafter, the convict Omar Sharif @
Sueb passing therefrom, came to the spot accidentally and on his own volition,
and stabbed the victim. There is no evidence that the said Sueb was called by
the appellants herein. There are no call records or any other evidence to suggest
that the appellants had summoned him. Sueb took out a knife on his own and
stabbed the victim. Since the knife which could be easily possessed by the
appellants could not have had any idea that such a weapon was being carried by
him. In such circumstances, Section 34 of the IPC cannot be attributed to the
appellants herein, and even if Section 34 is held to be applicable, the same
cannot be read with Section 302 of the IPC. There was no premeditation from
the sequence of events narrated above. The actions of the appellants show that
there was no prior meeting of minds. There is also no previous enmity between
the parties. The accused-appellants joined the assault only because their friend,
Sukanta Biswas, was being assaulted by the deceased, and they were trying to
save him. They were not the perpetrators of the crime. As such, they come
under the ambit of „ general exemption’ under the Indian Penal Code as they
lacked criminal intent.
He further submitted that, as per the deposition of PW-32,
the medical doctor who examined the victim in the hospital, the victim was
disoriented, his blood pressure had come down to 60/40, and there was lack of
flow of oxygen to the brain. The victim was in a bad condition. Therefore, the
alleged dying declaration is not trustworthy, and any video recording of the
same cannot be relied upon to bring it to the standard of a dying declaration.
The same does not pass the test of credibility. A dying declaration is required to
be made by a mentally fit person, but the victim was not in a fit mental
condition at the relevant point of time. That no blood stains were found on the

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broken beer bottles in the SFSL examination, and therefore the beer bottles
could not be linked with the alleged assault on the victim. Furthermore, the two
accused-appellants did not even know the victim, which fact has not been stated
by any of the prosecution witnesses.
17.1. Mr. S. Sarkar, on the point that confession given before the
Executive Magistrate is violated to the mandatory provision of law, has cited
paras-20 and 29 of the Hon‟ble High Court of Gauhati reported in 2007(3)

GLT 697 titled as State of Assam Vs. Anupam Das dated 03.08.2007 .
17.2. On the point of common intention and pre-arranged plan,
Mr. Sarkar, learned Sr. counsel relied upon paras-21, 23, 24, 27 and 28 of the
Hon‟ble Supreme Court Judgment reported in (2020) 4 SCC 126 titled as
th
Chhota Ahirwar Vs. State of Madhaya Pradesh dated 6 February, 2020.
17.3. On the point of intention of the assault, Mr. Sarkar, learned
Sr. counsel referred to the Judgment of the Hon‟ble Privy Council reported in
CrlJ 1945 689 , tilted as Mahbub Shah Vs. King-Emperor .
17.4. To support his argument made under the Evidence Act,
Learned Sr. counsel relied upon the relevant Paras-7 and 8 of the Judgment
passed by the Hon‟ble Supreme Court reported in 1975 AIR(SC)1026 titled as
Ram Kumar Pande Vs. The State of M.P .
16.5. Further on the point of common intention, learned Sr.
counsel cited para-3 of Hon‟ble Apex Court Judgment reported in 1995
Supp(4) SCC 558, titled as Kashmira Singh Vs. State of Punjab dated
st

October, 21 , 1992 .
17.6. On the point of Section 25 and 27 of the Evidence Act,
learned Sr. counsel relied upon Paras-15 and 16 of the Hon‟ble Apex Court
Judgment titled as Criminal Appeal No.297 of 2024 titled as Randeep Singh@
Rana & Anr. Vs. State of Haryana and ors .

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Stating thus, learned Sr. counsel urged this Court to allow
this appeal by quashing the impugned Judgment and order of conviction and
grant acquittal.
18. On the other hand, the learned Public Prosecutor appearing
for the State-respondent placed heavy reliance on Para-44 of the judgment
previously passed by this Court on 01.07.2025 in Crl. A.(J) No. 57 of 2023. In
that case, where the co-accused Omar Sharif was found guilty of the offence,
this Court observed that the appellant therein (Omar Sharif), acting upon the
instigation of his co-accused, produced a large knife and inflicted severe
stabbing blows on the deceased, leading to his collapse. The learned P.P.
contended that the present appellants effectively complained or signaled to
Sueb (Omar Sharif) to attack the victim, thereby instigating the fatal assault. To
counter the defense's argument regarding lack of visibility at the crime scene,
the learned P.P. referred to the testimony of PW-27, an Executive Engineer
(Electrical) at the Agartala Municipal Corporation. This witness deposed that, at
the relevant time of the incident, the street lights in the area were functional and
there was no record of any complaint regarding the dysfunction of the electrical
lighting system. Regarding the absence of the appellant‟s name in Crl. A.(J) No.
18 of 2026 from the FIR, the learned P.P. submitted that the FIR specifically
mentioned the involvement of " others " alongside the named accused, therefore,
the subsequent identification and addition of his name in the charge sheet is
legally sound. The learned P.P. further contended that common intention was
clearly established, as all the accused persons launched a joint attack on the
victim with the intent to cause grievous hurt, which ultimately resulted in death.
He further argued that the accused shared a common object and intention during
the commission of the act. Finally, it was submitted that the minor
discrepancies pointed out by the defense regarding the investigation cannot
outweigh the overwhelming weight of the evidence brought forth by the
prosecution witnesses.

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18.1. On the point that small discrepancies in the investigation
process does not hinder the present case, learned P.P., referred to Para-20 of the
Judgment of the Hon‟ble Supreme Court reported in 2025 SCC Online SC 627 ,
titled as Firoz Khan Akbarkan Vs. State of Maharashtra .
18.2. On the point of contradiction, learned P.P., referred to para-
23 of the Judgment of the Hon‟ble Supreme Court reported in 2023 SCC
Online SC 1396 , titled as Birbal Nath Vs. State of Rajasthan and ors ., dated

October, 30, 2008 .
Stating thus, learned P.P., urged this Court to dismiss both
these appeals and uphold the impugned Judgment and order of conviction.
19. Heard and perused the record.
th
20, Admittedly, on the intervening night of 03/04 August,
2019, there was a scuffle between the deceased and accused No.3 in S.T.(T/1)
103 of 2019, namely Sukanta Biswas (Traffic Inspector), when the later was
urinating in front of the shop (medical store). The appellants intervened, and in
the process, accused No. 4 in S.T.(T/1) 103 of 2019, namely Omar
Sharif@Sueb@Shoiab (convict/appellant in Crl. A.(J) No. 57 of 2023, which
was dismissed on 01.07.2025 by this Court), who was passing by on his two-
wheeler, on seeing the scuffle and upon being informed by the appellants that
their friend Sukanta Biswas was being assaulted, stabbed the victim/deceased
indiscriminately several times with his knife. The deceased was later shifted to
G.B.P. Hospital for treatment and was subsequently shifted to Kolkata for better
treatment. However, on 16.08.2019, he succumbed to his injuries, also due to
„ septicaemia ‟.
21. The prime accused, namely Omar Sharif@Sueb@Shoiab,
was convicted for life imprisonment under Sections 302, 326 and 34 of the IPC
by the Trial Court, and this Court in Crl. A.(J) No. 57 of 2023 confirmed the
same. The seized weapon/knife and the cut injuries inflicted on the body of the

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victim/deceased were duly confirmed by the FSL examination ( Exbt. 12 ) and
also by PWs-11 and 32 (medical doctors) through their medical reports. The
doctor who examined the preliminary injuries, namely PW-11, confirmed the
injuries through his injury report [Exbt. Nos. 14(i) and 14(ii)].
22. In the complaint marked as Exhibit No. 1, PW-1, the mother
of the victim/deceased stated thus::-
―I humbly state that my son, Bodhisattwa Das, is

currently employed as the Branch Manager of UCO Bank at
Dharmanagar. On Friday, 2nd August 2019, he traveled from
Dharmanagar to Agartala to proceed to Kolkata for official work.
Last Saturday night, when he did not return home by 12:00 a.m., I
contacted him. He assured me that he would be home shortly.
However, when he did not arrive, I called him again around 1:00
a.m. on 4th August 2019. The call was unclear, but I distinctly
heard him mention "G.B. - G.B.
Upon reaching G.B. Hospital, I met my
relatives and found my son in an unconscious state, undergoing
treatment for multiple bleeding injuries on his stomach, neck,
hands, and back, with his intestines exposed. My son has been
grievously injured by repeated strikes, with sharp weapon.
Subsequently, I learned that around 12:50 a.m., Sumit, boy ch
Chandary of Kalika Jewellers, along with Shoaib Miah and others,
attacked my son near Sarada Medical Hall at Jackson Gate and
brutally assaulted him using liquor bottles and sharp objects with
the intent to kill.
Presently, my son is fighting for his life in
the G.B. Hospital.
Therefore, I earnestly request your good
office to conduct a thorough investigation and take strict penal
action against the accused persons to ensure justice is served‖
23. PW-1 was only a hearsay witness/complainant. PW-2, who
is the eye-witness to the incident and was also present along with the
victim/deceased, informed PW-1 about the crime that had taken place.
24. PW-2, in his deposition, stated that on 03.08.2019, after
closing his factory, he met the deceased near Jackson Gate. Both of them sat in
front of Sarada Medical Hall and consumed two bottles of beer. Around 11:30
pm to 12:00 midnight, a white-coloured vehicle arrived and stopped in front of

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Sarada Medical Hall. Sukanta Biswas, a Traffic Inspector and known to PW-2,
came down from the vehicle and started urinating in front of an adjacent shop.
When PW-2 and the deceased objected, a hot altercation ensued between
Sukanta Biswas and the deceased. During the altercation, two other persons,
namely Sumit Chowdhury of Kalika Jewellers and Sumit Banik, came down
from the same vehicle. Both Sumit Chowdhury and Sumit Banik joined Sukanta
Biswas and started assaulting the deceased. Sukanta Biswas pushed the
deceased to the ground, sat on his chest, and assaulted him severely. Sumit
Chowdhury and Sumit Banik also participated in the assault.Thereafter, Shoiab
Miah (Omar Sharif) arrived at the spot on a scooter. At that time, Sumit
Chowdhury and Sumit Banik complained to Shoiab Miah that the deceased had
assaulted their “Sir” (Sukanta Biswas). All four persons, namely Sukanta
Biswas, Sumit Chowdhury, Sumit Banik, and Shoiab Miah, then conjointly
assaulted the deceased and dragged him from one side of the road to the other.
Suddenly, Shoiab Miah took out a big knife from his waist and inflicted
multiple stabbing blows on various parts of the body of the deceased, including
the chest and back. The deceased put his hand on his belly and fell down on the
ground. Shoiab Miah then attempted to assault PW-2, but was prevented by one
Basu Kar.
PW-2 identified all the four accused persons, namely Sumit
Chowdhury, Sumit Banik, Sukanta Biswas, and Shoiab Miah, both by name and
by face, with the help of the street light. After the incident, the three accused
persons (Sumit Chowdhury, Sumit Banik, and Sukanta Biswas) left the spot in
the vehicle, while Shoiab Miah followed PW-2 and Basu Kar for some distance
before taking a different route.
PW-2 further deposed that out of fear, he initially returned home.
Later, upon the request of his mother, he again went to the spot but did not find
the deceased there. On the next day (04.08.2019), he went to GBP Hospital and
narrated the entire incident to the mother of the deceased (PW-1) in the

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presence of her relatives. His statement was recorded by the police on the same
day, and subsequently, his statement under Section 164 Cr.P.C. was recorded
before a Judicial Magistrate on 24.10.2019.
25. It is categorically seen that in the light of the evidence of
PW-2 (eye-witness) and the seized knife/weapon, along with Exbt. Nos. 14
(injury reports confirmed by PWs-11 and 32, the medical doctors), the case
clearly attracts Section 307 IPC, which was later converted to Section 302 and
326 IPC. In view of the same, the prime accused Omar Sharif@Sueb@ Shoiab
has been convicted by the Trial Court, which was affirmed by this High Court.
26. Now, the matter falls for consideration as to what extent the
present appellants are involved in the crime so as to attract Section 302 read
with Section 34 of the IPC, as can be seen from the judgment of the Trial Court.
Section 302 and Section 34 of IPC is extracted here-in-
under:-
―302. Punishment for murder.—
Whoever commits murder shall be punished with death,
or imprisonment for life, and shall also be liable to fine.
34. Acts done by several persons in furtherance
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.‖
27. Admittedly, as per the evidence of P.W.-2, eye-witness, it is
seen that he deposed that:-
―Meanwhile one Shoiab Miah of Santipara reached there along

with a Scooty, when Sumit Chowdhury and Sumit Bnak complained to Shoiab
Miah that Budhisatya had assulated their Sir, Sukanta Biswas.‖
28. It is seen from the evidence of PW-2 that the appellants only
said to the convict Omar Sharif@Sueb@Shoiab, on his sudden arrival, that their
friend was being beaten. Here the friend is Sukanta Biswas (Traffic Inspector),
who was being beaten up by the victim/deceased. Instantaneously, the said

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Omar Sharif@Sueb@Shoiab proceeded further and stabbed the
victim/deceased.
29. On examination of Section 34 of the IPC read with Section
302 of the IPC, pre-meditation and common intention to kill the victim becomes
essential. There is no evidence on record, either from the prosecution witnesses
or any exhibits, indicating that the appellants had a common intention and a
plan to kill the deceased. As per the evidence of PW-1 and the complaint (Exbt.
No. 1), it is stated that her son was stabbed with liquor bottles. Though the
liquor bottles were seized and got examined by the forensic expert, nowhere is
it indicated that there were fingerprints of the appellants on the liquor bottles.
Further, there was no blood stain on the liquor bottles pertaining to the
deceased. Thus, it can be safely construed that the deceased was not killed by
the beer bottles, but was killed by the convict Omar Sharif@Sueb with his
knife. As such, the cause of common intention is not made out as there is no
„ pre-meditation ‟. Therefore, the present appellants cannot be brought under the
ambit of Section 302 of the IPC read with Section 34 of the IPC and the same is
not germane .
30. Further, it is seen that the confession has been recorded
under Section 164 of the Cr.P.C. by the Executive Magistrate. It is a settled
principle that the Executive Magistrate is not recognized under the Criminal
Procedure Code, and as per the definition under Section 164 Cr.P.C.,
“ Magistrate ” means a „ Judicial Officer ‟ of the Court of law. It is settled law
that an extra-judicial confession cannot be used against the accused person. It is
a settled principle of law that no confession recorded by a police officer in a
police station can be used against the accused person unless it is corroborated,
and the same is not proved beyond reasonable doubt. In the present case,
requirement under law has been satisfied by the prosecution to fix the
appellants under the alleged crime.

Page 16 of 25
31. Mr. B.N. Majumder, learned Sr. counsel appearing for the
appellants on the point of accused herein complaining to the convict- Omar
Sharif@Sueb about the incident does not amount of instigation cited following
paras of Ajay Sharma Vs. State of Rajasthan(Supra) , the same is cited here-
in-below:-
“ ―2. Mr. Jayant Bhushan, the learned counsel for the
appellant, submitted that as the only overt act attributed to him was that
he caught hold of the deceased and exhorted Daljeet by saying 'Maro", so
it cannot be said that there was common intention to kill the deceased: the
appellant only said 'Maro', which did not mean 'to kill', therefore, he
ought not to have been convicted under Section 302 read with Section
34 IPC. To examine the contention of the learned counsel, we have
perused the First Information Report and the statement of Mohan Mujral
(pw-1). The relevant allegation in the F.I.R. reads as follows:
"At this both Pappu (appellant) and Ganeshi said strike at his Daljit".
PW - 1 deposed before the Court.
"when we raised the alarm, both Pappu Pandit and Ganeshi instigated
Daljit Singh "Strike'. They exhorted him to strike at Kailash. At this Daljit
took out a short kripan from under the stockings he had worn. He, then,
in a jiffy struck at Kailash 2-3 blows on the left portion of his body'.
Thus, from the averments in the FIR as well as from the statement of PW-
1, it cannot be said that the appellant had shared common intention to kill
the deceased. The appellant might not have been known that Daljeet
Singh was having a kripan under his stockings. The instigation was only
'to strike' and as such his conviction under Section 302 read with Section
34 IPC is not sustainable. [See Jai Narain Mishra vs. State of Bihar (AIR
1972 SC 1764) and Matadin vs. State of Maharashtra 1998 5 JT (SC)
264. The conviction of the appellant under Section 302 / 34 , IPC is,
therefore, set aside; instead he is convicted under Section 324 read
with Section 110 IPC and sentenced to the period already undergone. His
bail bonds shall stand cancelled and he be released forthwith unless he is
required to be incarcarated in any other case. The appeal is accordingly
disposed of.
32. Mr. Subrata Sarkar, learned Sr. counsel appearing for the
appellant of Crl.A.(J) No.18 of 2026, on the point that confession given before
the Executive Magistrate, in this present case is violative of mandatory
provisions has cited the following Paras of State of Assam Vs. Anupam
Das(supra) .

Page 17 of 25
―20. It can be seen from the language of Section 26 that the
only exception to the Rule contained under Section 26 is that any such
confession, which is otherwise hit by Section 26 , can be proved against the
accused if such a confession is made in the immediate presence of a Magistrate.
It is not the case of the prosecution that the alleged confession before PW-8 was
made in the immediate presence of a Magistrate, therefore, the same is clearly hit
by Section 26 and cannot be looked into.
29. 29. From the foregoing discussion we have no
alternative but to reach an irresistible conclusion that the expression
"Magistrate" occurring in Section 26 of the Evidence Act can only mean a
Judicial Magistrate but not an Executive Magistrate.‖
33. Mr. Sarkar, learned Sr. counsel on the point of common
intention and pre-arranged plan has also cited this following paras of Hon‟ble
Supreme Court Judgment in Chhota Ahirwar Vs. State of Madhya
Pradesh ( supra ):-
“ ―21. It is a settled principle of criminal law that only the
person who actually commits the offence can be held guilty and sentenced in
accordance with law. However, Section 34 lays down a principle of joint liability in
a criminal act, the essence of which is to be found in the existence of common
intention, instigating the main accused to do the criminal act, in furtherance of
such intention. Even when separate acts are done by two or more persons in
furtherance of a common intention, each person is liable for the result of all the
acts as if all the acts had been done by all of these persons.

23. Common intention can only be inferred from proved facts and
circumstances as held by this Court in Manik Das & Ors. vs. State of Assam . Of
course, as held in Abdul Mannan vs. State of Assam reported in, the common
intention can develop during the course of an occurrence.
24. Section 34 is only attracted when a specific criminal act is done
by several persons in furtherance of the common intention of all, in which case all
the offenders are liable for that criminal act in the same manner as the principal
offender as if the act were done by all the offenders. This Section does not whittle
down the liability of the principal offender committing the principal act but
additionally makes all other offenders liable. The essence of liability under Section
34 is simultaneous consensus of the minds of persons participating in the criminal
act to bring about a particular result, which consensus can even be developed at the
spot as held in Lallan Rai & Ors. vs. State of Bihar reported in. There must be a
common intention to commit the particular offence. To constitute common
intention, it is absolutely necessary that the intention of each one of the accused
should be known to the rest of the accused.
28. The question in this case is, whether the Prosecution has been
able to establish a pre-arranged common intention between the accused appellant
and the main accused Khilai to kill the complainant in pursuance of which the
accused Khilai open fired from his pistol. The answer to the aforesaid question has
to be in the negative for the following reasons:

Page 18 of 25
28.1. A quarrel broke out between the accused appellant and the
complainant. When the accused appellant tried to prevent the complainant from
going to the field, the complainant insisted on doing so. While the quarrel was
going on, the main accused Khilai arrived at the spot and intervened whereupon
the complainant told him off, saying he should go home as he was in no way
concerned with the dispute. At this, the main accused Khilai brought out a pistol
from his right pant pocket and aimed it at the complainant.

28.2. There is no evidence to establish any pre-arrangement to converge
at the place of occurrence. The circumstances established suggest that intervention
by the main accused Khilai was by chance. The main accused Khilai chanced to
stop as he was passing by the place of occurrence when the accused appellant and
the complainant were quarrelling.‖

34. On the point of intention of assault, Mr. Sarkar, learned Sr.
counsel cited the following paras of Hon‟ble Privy Council Judgement in
Mahbub Shah Vs. King Emperor ( supra ):-
―The learned Judge then proceeded to examine the case of
the appellant and Wali Shah. He stated that the case of Mahbub Shah, who was
armed with a single barrelled' gun, and of Wali Shah, who had a double barrelled
gun, however, stood on a different footing. He distinguished their case on the
following ground:
As soon as they ran to the assistance of Ghulam Quasim Shah, they fired
simultaneously in the direction of the complainants killing Allah Dad on the spot
and causing injuries on the person of Hamidullah Khan. It is difficult to believe
that when they fired the shots they did not have the common intention of killing one
or more of the complainant party. If so, both of them are guilty of murder
notwithstanding the fact that the fatal shot was-fired by only one of them, namely,
Wali Shah, absconder.
It will be observed that according to the learned Judgea
common intention to commit the crime came into being when appellant and Wali
Shah fired the shots.
Their Lordships will now proceed to consider whether the
above reasoning is correct, and Section 34 of the Indian Penal Code has been
rightly applied to the facts of the case. Attention has already been drawn to the
words of the section. As it originally stood, the section was in the following terms:
When a criminal act is done by several persons, each of such persons is liable for
that act in the same manner as if the act was done by him alone.
In 1870, it was amended by the insertion of the words "in
furtherance of the common: intention of all" after the word "persons" and before
the word "each," so as to make the object of the section clear. Section 34 lays down
a principle of joint liability in the doing of a criminal act. The section does not say

Page 19 of 25
"the common intentions of all" nor does it say "an intention common to all."
Under the section, the essence of that liability is to be found in the existence of a
common intention animating the accused leading to the doing of a criminal act in
furtherance of such intention. To invoke the aid of Section 34 successfully, it must
be shown that the criminal act complained against was done by one of the accused
persons in the furtherance of the common intention of all; if this is shown, then
liability for the crime may be imposed on any one of the persons in the same
manner as if the act were done by him alone. This being the principle, it is clear to
their Lordships that common intention within the meaning of the section implies a
pre-arranged plan, and to convict the accused of an offence applying the section it
should be proved that the criminal act was done in concert pursuant to the pre-
arranged plan. As has been often observed, it is difficult if not impossible to
procure direct evidence to prove the intention of an individual; in most cases it has
to be inferred from his act or conduct or other relevant circumstances of the case.
On careful consideration, it appears to their Lordships that in the
present case "there was no evidence and there were no circumstances from which it
might be inferred that the appellant must have geen acting in concert with Wali
Shah in pursuance of a concerted plan when he along with him rushed to the
rescue of Ghulam Quasim. The exaggerated circumstances alleged by the
prosecution to invoke the aid of Section 34 , Indian Penal Code, have been found
against by the High Court who have acted solely on the evidence of P. W. 10 and P.
W. 11. There was no evidence to indicate that Ghulam Quasim was aware that the
complainant party had been cutting reeds from his uncle's lands, or that the
appellant and Wali Shah had been kept behind the bush to come and help him
when called upon to do so. The evidence shows that Wali Shah "happened to be out
shooting game," and when he and the appellant heard Ghulam's shouts for help
they came up with their guns; the former shot the deceased, killing him outright,
and the appellant shot at Hamidullah Khan inflicting injuries on his person,
Indeed, the High 'Court negatived the existence of a "common intention" at the
commencement in the sense in which their Lordships have explained the terms by
stating-in considering the application of Section 34 , Indian Penal Code, to the case
of Ghulam-what has been already quoted, viz.:
that the sole point which requires consideration now is whether a common
intention to commit the crime came into being when Ghulam shouted to his
companions to come to his rescue and both of them emerged from behind the
bushes and fired their respective guns.‖
35. On his point of Evidence Act, Mr. Sarkar, learned Sr.
counsel, cited Hon‟ble Apex Court Judgment in Ram Kumar Pande Vs. The
State of M.P. (supra) . The same is extracted here-in-under:-
―7. The prosecution case, as set out in the First Information
“
Report was ; Uttam Singh, PW 1, residing at Ganj Parao, on the first floor went
home at about 3.30 p.m. on 23-3-1970 and was preparing to have a bath when
Suresh Ahuja came down from an upper storey of the house and complained that
Uttam Singh had been quarreling with members of his family. Uttam Singh
requested him to take his seat and promised to look into the matter. This angered
Suresh Ahuja. Thereafter, his, elder brother arrived and started quarreling with

Page 20 of 25
Uttam Singh's daughter. At this stage, the landlord Mulkraj Ahuja, accompanied
by the appellant Ram Kumar Pandey, who lives with his family in a side room on
the ground floor, entered and immediately gave him a blow on his eye-,brow. Uttam
Singh fell down. As Uttam Singh got up, the appellant struck him with a knife from
behind. Mukhraj asked Pandey to run down-stairs. Both the accused tried to run
away. Uttam Singh tried to catch them but failed. Uttam Singh when asked his son
Harbinder Singh to make a telephone call. At this point, Suresh, son of Mulkraj,
stabbed Harbinder Singh who fell down in the lane. Uttam Singh saw Harbinder
Singh lying near the house of Saudager Shah with an injury on his chest which
was bleeding profusely. Harbinder Singh was carried to a hospital on a cart and
Gurcharan Singh telephoned the police. Joginder Singh also came while the
injuries were being inflicted. Uttam Singh's daughters Amarit Kaur and Taranjit
Kaur saw Uttam Singh wrapping a chadar an the wound of Harbinder Singh. Raj
Jaggi had seen Harbinder Singh falling down. The motive for this incident was that
Mulkraj Ahuja, the landlord, wanted his house vacated by Uttam Singh. Harbinder
Singh had died while being taken to hospital.
8. The above mentioned First information Report was lodged at
Police Station Ganj on 23-3-1970 at 9.15 p.m. The time of this incident is stated to
be 5 p.m. The only person mentioned as an eye witness to the murder of Harbinder
Singh is Joginder Singh. The two daughters Taranjit Kaur, PW 2, and Amarjit
Kaur, PW 6, are mentioned in the F.I.R. only as persons who saw the wrapping of
the chadar on the wound of Harbinder Singh, What is most significant is that it is
nowhere mentioned in the F.I.R. that the appellant had stabbed Harbinder Singh at
all. It seems inconceivable that by 9.15 p.m. it would not be known to Uttam Singh,
the father of Harbinder Singh, that the appellant had inflicted one of the two stab
wounds on the body of Harbinder Singh.‖
36. On the point of common intention, Mr. Sarkar, learned Sr.
counsel cited the following paras of Kashima Singh Vs. State of Punjab
(supra):-
―3. Common intention is to be inferred from the
“
circumstances particularly the part played by the accused and the surrounding
circumstances, namely, nature of the weapon used and the injury inflicted as well
as the meeting of the minds among the accused who are being held constructively
liable. The facts stated above would reveal that the appellant tried to pick the pocket
of PW 5 who called the deceased and the deceased tried to catch hold of the
appellant and it was a sudden act on the part of William who picked out a knife
from his pocket and inflicted a single injury on the deceased. Under those
circumstances it cannot be held that the appellant and Sukhchain Singh had prior
knowledge that William was armed with a knife and the part played by William
cannot be said to be a conjoint act so as to attract the element of common intention
on the part of the appellant as well as Sukhchain Singh. We also find that the High
Court has not examined the reasons given by the Sessions Court for acquitting the
appellant and Sukhchain Singh. It may be that two views are possible but the view
taken by the trial court in the instant case cannot be said to be unsound. In this
view of the matter we set aside the conviction and the sentence awarded by the High
Court and confirm the order of the acquittal of the Sessions Court. In our view
benefit of this order should also go to Sukhchain Singh who is not before us. In the

Page 21 of 25
view we have taken we acquit Sukhchain Singh also and direct that he shall be set
at liberty if he is in jail. The appeal is accordingly allowed and the appellant shall
be set at liberty. If he is on bail, the bonds shall be cancelled.‖
37. On the point of Section 25 and 27 of the Evidence Act, Mr.
Sarkar, learned Sr. counsel cited the following Paras of the Hon‟ble Apex Court
Judgment in Randeep Singh@Rana and Anr Vs. State of Haryana and
ors.(Supra) :-
“ ―15. Sections 25 to 27 of the Evidence Act read thus:
―25. Confession to police-officer not to be proved.–– No
confession made to a police-officer , shall be proved as against a person accused of
any offence.
26. Confession by accused while in custody of police not to be proved against him.–
– No confession made by any person whilst he is in the custody of a police-officer,
unless it be made in the immediate presence of a Magistrate, shall be proved as
against such person.
Explanation.––In this section ―Magistrate‖ does not include
the head of a village discharging magisterial functions in the Presidency of Fort St.
George or elsewhere, unless such headman is a Magistrate exercising the powers of
a Magistrate under the Code of Criminal Procedure , 1882 (10 of 1882).
27. How much of information received from accused may be
proved.–– Provided that, when any fact is deposed to as discovered inconsequence
of information received from a person accused of any offence, in the custody of a
police-officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved.

16. A perusal of the deposition of PW-27, which we have
quoted above, shows that he attempted to prove the confessions allegedly made by
the accused to a police officer when they were in Police custody. There is a
complete prohibition on even proving such confessions. The learned Trial Judge
has completely lost sight of Sections 25 and 26 of the Evidence Act and has allowed
PW-27 to prove the confessions allegedly made by the accused while they were in
police custody. PW-27 stated that the appellant ―suffered disclosure statement at
Exhibits ‗P55‘ and ‗P56‘ respectively‖. Obviously, he is referring to disclosure of
the information under Section 27 of the Evidence Act. The law on disclosure
under Section 27 is well settled right from the classic decision of the Privy Council
in the case of Pulukuri Kotayya & Ors. v. King- Emperor2 . In the case of K.
Chinnaswamy Reddy v. State of A.P.3 , this Court relied upon the decision of the
Privy Council and in paragraph 9 held thus:
―9. Let us then turn to the question whether the statement of the appellant to the
effect that ―he had hidden them (the ornaments)‖ and ―would point out the place‖
where they were, is wholly admissible in evidence under Section 27 or only that part
of it is admissible where he stated that he would point out the place but not that part
where he stated that he had hidden the ornaments. The Sessions Judge in this
connection relied on Pulukuri Kotayya v. King-Emperor [ (1946) 74 IA 65] where a

Page 22 of 25
part of the statement leading to the recovery of a knife in a murder case was held
inadmissible by the Judicial Committee. In that case the Judicial Committee
considered 1946 SCC OnLine PC 47 : AIR 1947 PC 67 1962 SCC OnLine SC
32 Section 27 of the Indian Evidence Act, which is in these terms:
―Provided that, when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in the custody of a
police officer, so much of such information, whether it amounts to a confession or
not, as relates distinctly to the fact thereby discovered, may be proved.‖ This section
is an exception to Sections 25 and 26 , which prohibit the proof of a confession
made to a police officer or a confession made while a person is in police custody,
unless it is made in immediate presence of a Magistrate. Section 27 allows that part
of the statement made by the accused to the police ―whether it amounts to a
confession or not‖ which relates distinctly to the fact thereby discovered to be
proved. Thus even a confessional statement before the police which distinctly
relates to the discovery of a fact may be proved under Section 27 . The Judicial
Committee had in that case to consider how much of the information given by the
accused to the police would be admissible under Section 27 and laid stress on the
words ―so much of such information…as relates distinctly to the fact thereby
discovered‖ in that connection. It held that the extent of the information admissible
must depend on the exact nature of the fact discovered to which such information is
required to relate. It was further pointed out that ―the fact discovered embraces the
place from which the object is produced and the knowledge of the accused as to
this, and the information given must relate distinctly to this fact‖. It was further
observed that— ―Information as to past user, or the past history of the object
produced is not related to its discovery in the setting in which it is discovered.‖ This
was exemplified further by the Judicial Committee by observing— ―Information
supplied by a person in custody that ‗I will produce a knife concealed in the roof of
my house‘ leads to the discovery of the fact that a knife is concealed in the house of
the informant to his knowledge, and if the knife is proved to have been used in the
commission of the offence, the fact discovered is very relevant. If however to the
statement the words be added ‗with which I stabbed A', these words are
inadmissible since they do not relate to the discovery of the knife in the house of the
informant.‖ (emphasis added) Section 27 is an exception to Sections 25 and 26 . It
permits certain parts of the statement made by the accused to a police officer while
in custody to be proved. Under Section 27 , only that part of the statement made by
the accused is admissible, which distinctly relates to the discovery. It becomes
admissible when a fact is discovered as a consequence of the information received
from the accused. What is admissible is only such information furnished by the
accused as relates distinctly to the facts thereby discovered. No other part is
admissible. By Exhibits ‗P55‘ and ‗P56‘, it is alleged that the accused showed the
places where the deceased was abducted, where he was murdered and where his
body was thrown. In this case, even the inadmissible part of the statement
under Section 27 of the Evidence Act has been incorporated in the examination-in-
chief of PW-27. The learned trial judge should not have recorded an inadmissible
confession in the deposition. A confessional statement made by the accused to a
police officer while in custody is not admissible in the evidence except to the extent
to which Section 27 is applicable. If such inadmissible confessions are made part of
the depositions of the prosecution witnesses, then there is every possibility that the
Trial Courts may get influenced by it.‖
38. On these points, this Court is of the view that the appellants
are supported by the judgments of the Hon‟ble Supreme Court.

Page 23 of 25
39. On the point that small discrepancies in the investigation
process do not hinder the present case, the learned Public Prosecutor also cited
the following paragraphs of the Hon‟ble Apex Court Judgment in Firoz Khan
Akbarkan vs. State of Maharastha(supra) :-
―20. To our mind, the prosecution has succeeded in

proving its case beyond reasonable doubt. Having carefully gone through the
material on record, especially the depositions of the witnesses and upon a keen
examination of the relevant aspects of the case, we find that the presence of the
appellant at the site of the incident and him having stabbed the deceased on the
stomach repeatedly has been the consistent stand of the PWs who were eye-
witnesses. The Courts below have also concurrently found the same. The accused-
appellant has not been able to controvert the evidence on record. Minor and
immaterial inconsistencies and/or discrepancies shall not harm the case of the
prosecution, as held, inter alia, in State of Himachal Pradesh v Lekh Raj , (2000) 1
SCC 247; Narayan Chetanram Chaudhary v State of Maharashtra , (2000) 8 SCC
457; State of Madhya Pradesh v Ramesh , (2011) 4 SCC 786; Mekala Sivaiah v
State of Andhra Pradesh , (2022) 8 SCC 253, and; Rameshji Amarsingh Thakor v
State of Gujarat , 2023 SCC OnLine SC 1321. The following observations
from Lekh Raj (supra) are instructive:
7. In support of the impugned judgment the learned counsel appearing for the
respondents vainly attempted to point out some discrepancies in the statement of the
prosecutrix and other witnesses for discrediting the prosecution version.
Discrepancy has to be distinguished from contradiction. Whereas contradiction in
the statement of the witness is fatal for the case, minor discrepancy or variance in
evidence will not make the prosecution's case doubtful. The normal course of the
human conduct would be that while narrating a particular incident there may
occur minor discrepancies, such discrepancies in law may render credential to the
depositions. Parrot-like statements are disfavoured by the courts. In order to
ascertain as to whether the discrepancy pointed out was minor or not or the same
amounted to contradiction, regard is required to be had to the circumstances of the
case by keeping in view the social status of the witnesses and environment in which
such witness was making the statement. This Court in Ousu Varghese v. State of
Kerala [(1974) 3 SCC 767 : 1974 SCC (Cri) 243] held that minor variations in the
accounts of the witnesses are often the hallmark of the truth of their
testimony. In Jagdish v. State of M.P. [1981 Supp SCC 40 : 1981 SCC (Cri) 676]
this Court held that when the discrepancies were comparatively of a minor
character and did not go to the root of the prosecution story, they need not be given
undue importance. Mere congruity or consistency is not the sole test of truth in the
depositions. This Court again in State of Rajasthan v. Kalki [(1981) 2 SCC 752 :
1981 SCC (Cri) 593] held that in the depositions of witnesses there are always
normal discrepancies, however, honest and truthful they may be. Such
discrepancies are due to normal errors of observation, normal errors of memory
due to lapse of time, due to mental CRIMINAL APPEAL NO.257 OF 2013 13 of 27
disposition such as shock and horror at the time of occurrence, and the like.
Material discrepancies are those which are not normal and not expected of a
normal person.

Page 24 of 25
8. Referring to and relying upon the earlier judgments of this Court in State of U.P.
v. M.K. Anthony [(1985) 1 SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC 48] ,
Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012 : 1959 Supp (2) SCR 875] ,
Appabhai v. State of Gujarat [1988 Supp SCC 241 : 1988 SCC (Cri) 559 : JT (1988)
1 SC 249] and Rammi v. State of M.P. [(1999) 8 SCC 649 : JT (1999) 7 SC 247],
this Court in a recent case Leela Ram v. State of Haryana [(1999) 9 SCC 525 : JT
(1999) 8 SC 274] held:
―There are bound to be some discrepancies between the narrations of different witnesses
when they speak on details, and unless the contradictions are of a material dimension, the
same should not be used to jettison the evidence in its entirety. Incidentally, corroboration
of evidence with mathematical niceties cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason therefor should not render the
evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an
otherwise acceptable evidence….
The court shall have to bear in mind that different witnesses react differently under
different situations: whereas some become speechless, some start wailing while some others
run away from the scene and yet there are some who may come forward with courage,
conviction and belief CRIMINAL APPEAL NO.257 OF 2013 14 of 27 that the wrong
should be remedied. As a matter of fact it depends upon individuals and individuals. There
cannot be any set pattern or uniform rule of human reaction and to discard a piece of
evidence on the ground of his reaction not falling within a set pattern is unproductive and
a pedantic exercise.‖
(emphasis supplied)‖
40. On the point of contradiction, learned P.P., cited the
following paras of the Hon‟ble Supreme Court Judgment of Birbal Nath Vs.
State of Rajasthan and ors.,(supra) :-
―20. No doubt statement given before police during investigation

under Section 161 are ―previous statements‖ under Section 145 of the Evidence Act and therefore
can be used to cross examine a witness. But this is only for a limited purpose, to ―contradict‖ such
a witness. Even if the defence is successful in contradicting a witness, it would not always mean
that the contradiction in her two statements would result in totally discrediting this witness. It is
here that we feel that the learned judges of the High Court have gone wrong.‖
41. In the facts of the present case, the judgments cited by the
learned Public Prosecutor are not applicable for the reasons stated supra.
42. Thus, it can be safely construed that Section 34 of the IPC
cannot be made applicable against the accused herein, and thus they are not
punishable under Section 302 of the IPC. Accordingly, the case of the
prosecution fails. It is seen from the record that for the last six years, the
appellants have been in jail, though there was an allegation of assault no charge
under Section 323 of IPC has been framed and the punishment for assault if
proved is only one month.

Page 25 of 25
43. In view of the above observations, this Court is of the
considered view that the appellants are entitled to acquittal. Therefore, the
appeals are allowed. The Judgments and the Orders of Conviction dated
02.06.2023 and 03.06.2023 passed by the Trial Court in S.T.(T-1) 103 of 2019
against the appellants herein stand set aside. The appellants herein shall be
released immediately, if not wanted in any other case.
44. As a sequel, stay if any stands vacated. Pending
application(s) if any also stands closed.


S. DATTA PURKAYASTHA, J
DR. T. AMARNATH GOUD, J









Suhanjit
Digitally signed by RAJKUMAR
SUHANJIT SINGHA
Date: 2026.05.26 11:56:17 +05'30'
RAJKUMAR SUHANJIT
SINGHA