Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 157 of 2011, Judgment Date: Apr 08, 2015

                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 157 OF 2011


      Bivash Chandra Debnath @
      Bivash D & others                                        ... Appellants


                                   Versus


      State of West Bengal                                     ...Respondent



                               J U D G M E N T


      Prafulla C. Pant, J.




            This  appeal  is  directed  against  judgment  and  order  dated
      2.3.2010, passed by the  High  Court  of  judicature  at  Calcutta  in
      Criminal Appeal No. 235 of 1994 whereby said Court has  dismissed  the
      appeal  and  upheld  the  conviction  and  sentence  recorded  by  the
      Additional Sessions Judge, 1st Court,  Nadia,  in  Sessions  Case  No.
      11(6) 1986/S.T. No. II (3)  1994,  against  accused/appellants  Bivash
      Chandra Debnath, Sambhu Ghosh and Sadananda Mondal under  Section  302
      read with Section 149 of Indian Penal Code (IPC).


   2. We have heard learned counsel for the parties and perused  the  papers
      on record.


   3. Prosecution story, in brief, is that PW-1 Satya Charan Debnath and his
      sister's husband Ganesh Nath purchased two pieces of land situated  on
      northern side of Panchanantaal  of  village  Garibpur  about  a  month
      before the incident.  Both of them started  cultivation  on  the  land
      purchased and planted seeds of "Baro" paddy.  Accused  Bivash  Chandra
      Debnath @ Patal (appellant No. 1) had his land on the west of the land
      purchased by the Ganesh Nath.  On 1.12.1983 at about 8.00  a.m.,  PW-1
      Satya Charan Debnath and his brother-in-law Ganesh Nath came  to  know
      that accused Bivash Chandra Debnath along with many others was digging
      an irrigation channel through the land of Ganesh Nath to his land.  On
      this, PW-1 Satya Charan along with Ganesh Nath and his three  brothers
      Ajit Nath, Dulal Nath and Kartik Nath, and his son Panchanan  Debnath,
      rushed towards the land where the digging work was on.  They saw  that
      accused Bivash Chandra Debnath @ Patal with  the  help  of  co-accused
      Sunil Nath, Jemini Debnath, Sambhu Ghosh (appellant  No.  2),  Sidiram
      Gosh, Sadananda Mondal (appellant No. 3) and 27 others, was engaged in
      digging the land of Ganesh Nath and constructing  irrigation  channel.
      Ganesh Nath objected to and asked the appellant No. 1 as  to  why  his
      land was being dug without his permission.   This  enraged  the  three
      appellants and their associates who brought Tangi, Spear, Ram Dao, Bow
      and Arrow, sticks, etc. from the village and chased PW-1 Satya  Charan
      Debnath, Ajit Nath, Panchanan Debnath and Basudeb Nath, upto the field
      of Jiten Nath, and assaulted them and left them bleeding at the  spot.
      Out of the injured, Ajit Nath succumbed to the injuries, and  rest  of
      the injured PW-4 Dulal Nath, PW-2 Kartik Nath, PW-3 Panchanan  Debnath
      and Basudeb Nath were taken to hospital for medical treatment.
   4. The First Information Report of the incident was given orally by  PW-1
      Satya Charan Debnath to PW-6  S.I.  Nasrul  Ismal  of  Police  Station
      Tehatta on the very day (1.12.1983) at about 10.30 a.m.   Said  report
      was recorded as Ex. 1, and the crime was registered at 11.55  a.m.  at
      the police station against 30 accused, namely, Bivash Chandra  Debnath
      @ Patal (appellant No. 1), Sunil Debnath, Jemini Debnath, Sambu  Ghosh
      (appellant No. 2), Sidhiram Ghosh, Budhadeb  Ghosh,  Sadananda  Mondal
      (appellant No. 3), Surja Mondal,  Dayal  Mondal,  Biswa  Nath  Mondal,
      Nemai Mondal, Ranjit Mondal, Jaganath  Mondal,  Adwaita  Mondal,  Anil
      Nath, Dulal Mondal, Kartick Biswas, Ganesh Biswas, Srishtidhar Biswas,
      Dulal Biswal, Sunil Biswas, Santosh Biswas, Bhim  Chandra  Nath,  Naba
      Kumar Nath, Narayan Chandra Nath, Nirmal  Kumar  Nath,  Gopal  Chandra
      Mondal, Anil Mondal, Lakshman Mondal and Biswanath Nath, in respect of
      offences punishable under Sections 147, 148, 149,  447,  326  and  302
      IPC.


   5. PW-6 Nasrul Islam, along with police personnel, after getting the case
      registered, as above, went to the spot, took the  dead  body  of  Ajit
      Nath into possession, sealed the same and prepared the inquest report.
       He interrogated the witnesses.  The  dead  body  was  sent  for  post
      mortem examination.  CW-1 Dr. Rabindra N.Kundu  conducted  autopsy  on
      the dead body of the deceased on 2.12.1983 and  recorded  as  many  as
      eight ante mortem injuries, including six incised wounds.  The Medical
      Officer prepared the Post Mortem Report (Ex. 5) and  opined  that  the
      deceased had died due to shock and haemorrhage due to the ante  mortem
      injuries suffered by him.   The  Investigating  Officer  arrested  the
      accused and on completion of  investigation,  submitted  charge  sheet
      against as many as thirty accused, including appellants Bivash Chandra
      Debnath, Sambhu Ghosh @ Ram Pada and Sadananda Mondal.  The  case  was
      committed to the Court of Sessions for trial.



   6. The trial court, after hearing the parties, framed charge of  offences
      punishable under  Sections  147,  447/149,  326/149  and  302/149  IPC
      against all the thirty accused on 4.9.1989 to which they  pleaded  not
      guilty and claimed to be tried.  On this, the prosecution got examined
      PW-1 Satya Charan Debnath (informant and  eye  witness),  PW-2  Kartik
      Nath, PW-3 Panchanan Debnath, PW-4  Dulal  Nath  (all  the  three  eye
      witnesses), PW-5 S.I. Ajay Kumar Ghosh, PW-6 S.I.  Nasrul  Islam  (who
      recorded First Information Report and prepared the Inquest Report), PW-
      7 Nirmal Adhikari (Driver of the police  vehicle),  PW-8  S.I.  Sanjib
      Kumar  Biswas  (Arresting  Officer  of  some  of  the  accused),  PW-9
      Dinabandhu, and PW-10 Const. Jiaul Islam.  Apart from this, CW-1,  Dr.
      Rabindra N. Kundu (who conducted post  mortem  examination)  was  also
      examined.



   7. The oral and documentary evidence was put to the accused under Section
      313 of the Code of Criminal Procedure, 1973 (for short  "Cr.P.C.")  on
      19.7.1994 in Bangla, in reply to which  they  stated  that  they  knew
      nothing about the incident, and  pleaded  that  the  evidence  adduced
      against them, is false.  However, no evidence in  defence  appears  to
      have been given.



   8. After hearing the parties, the trial court came to the conclusion that
      accused Bivash Chandra Debnath @ Patal,  Sambhu  Ghosh  and  Sadananda
      Mondal, with some others, in furtherance to common  object,  committed
      murder of Ajit Nath, and held  all  the  three  guilty  of  charge  of
      offence punishable under Section 302 read  with  Section  149  IPC  on
      5.8.1994.  As to the rest of the accused, the trial court  found  that
      the prosecution has failed to prove charge as against  them,  as  such
      they were acquitted.  The Public Prosecutor and the  counsel  for  the
      accused, thereafter, were heard on sentence, and each one of the three
      convicts Bivash Chandra Debnath, Sambhu  Ghosh  and  Sadananda  Mondal
      were sentenced to imprisonment for life and directed to  pay  fine  of
      Rs.1000/-, in default of payment of which the defaulter  was  directed
      to undergo rigorous imprisonment for a further period  of  two  years.
      Aggrieved by  said  judgment  and  order  dated  5.8.1994,  the  three
      convicts challenged the same before the High Court and filed  Criminal
      Appeal No. 235 of 1994.  The  High  Court,  on  re-assessment  of  the
      evidence, concurring with the view taken by the trial court, dismissed
      the appeal.  Hence, this appeal through special leave.
   9. Before further discussion, we think it just and proper to mention  the
      ante mortem injuries found on the body of  the  deceased  (Ajit  Nath)
      recorded by CW-1 Dr. Rabindra N. Kundu, after post mortem examination,
      in Ex. 5.  The same are reproduced as under: -
           "1)   One incised wound 5" x 1" muscle deep over the  front  of
                 right elbow.


           2)    One incised wound 3" x 1" bone deep over the  right  side
                 of head beyond right ear.


                 On exploring the wound, the temporal bone was found cut.


           3)    One incised wound 2" x " muscle deep over the right side
                 angle of jaw.


           4)    One incised wound 2" x 1" muscle  deep  over  the  lateral
                 side of right knee.


           5)    One incised wound 4" x 1" muscle deep  over  the  lateral
                 side of right leg.   Bone  fibula  was  found  cut  in  two
                 pieces.


           6)    One incised wound 6" x 2" over the right  scapula  region.
                 Bone scapula was found cut.


           7)    One incised wound 2" x 1" muscle deep over the left  side
                 of neck.


           8)    A number of bruises over different parts of the body."


            The Medical Officer opined that the deceased had died  of  shock
      and haemorrhage resulting from the ante mortem wounds described above.
       He further mentioned in his report  (Ex.  5)  that  the  ante  mortem
      injuries were homicidal in nature.  CW-1 Dr. Rabindra N. Kundu  stated
      that the wounds suffered by the deceased could  have  been  caused  by
      Tangi, Dao and the death could have been resulted in  ordinary  course
      of nature by such injuries.  From the evidence of the Medical  Officer
      read with the autopsy report, it is proved on  the  record  that  Ajit
      Nath died a homicidal death.


  10. Now, we have to examine as to whether the courts  below  have  rightly
      found that the appellants, along  with  others,  with  common  object,
      committed murder by causing the ante mortem injuries suffered  by  the
      deceased, or not.  On this point there are four eye witnesses who have
      deposed about the role of the appellants in commission of  the  Crime.
      PW-1 Satya Charan Debnath has narrated the  entire  prosecution  story
      and deposed about the role of the appellants Bivash Chandra Debnath  @
      Patal, Sambhu Ghosh and Sadananda Mondal, and some other accused.   He
      has also explained as to how the  quarrel  started  over  digging  the
      field of Ganesh Nath  by  the  accused.   In  his  deposition  he  has
      specifically stated that  the  accused-appellants  armed  with  "Daos"
      (sharp edge weapons) caused death of Ajit Nath by assaulting him  with
      the help of said weapon.


  11. PW-2 Kartik Nath, PW-3 Panchanan Debnath and PW-4 Dulal Nath (all  eye
      witnesses) have corroborated the oral testimony of PW-1  Satya  Charan
      Debnath.  No doubt, these eye witnesses are related to  the  informant
      (PW-1),  but  merely  for  that  reason  their  testimony  cannot   be
      disbelieved, particularly, when their presence with the appellants  at
      the spot appears to be natural.  It is relevant to mention  here  that
      the incident had taken place in village Garibpur,  and  all  the  four
      witnesses belong to the same village.  There appears to be no personal
      enmity on the part of these witnesses as against the appellants.



  12. On behalf of the appellants it  is  argued  that  only  three  of  the
      accused have been found guilty of the  charge  of  offence  punishable
      under Section 302 read with Section 149 IPC, and unless it  is  proved
      on the record that unlawful  assembly  was  formed  by  five  or  more
      persons, the appellants could not have been convicted with the aid  of
      Section 149.



  13. We have examined the lower court record and we concur  with  the  view
      taken by the courts below that there was assembly of  more  than  five
      persons with a common object to use the  criminal  force  against  the
      deceased.  Only for the reason that 27 others  got  acquitted  as  the
      charge could not be proved against them beyond  reasonable  doubt,  it
      cannot be said that the persons who  committed  the  crime  were  only
      three in number or that the assembly was of three persons only.  There
      is ample evidence on the record to suggest that the  appellants  whose
      role is specifically proved  on  the  record,  were  accompanied  with
      others.  Even otherwise, since there is  sufficient  evidence  proving
      the role of the appellants that they caused injuries, as quoted above,
      to the deceased which resulted in  his  death,  even  without  aid  of
      Section 149 IPC they are liable to be held guilty for causing death of
      Ajit Nath with common intention with the aid of Section 34 IPC.



  14. In Khem Karan and others v. The  State  of  U.P.  and  another[1],  in
      paragraph 6 this Court has made following observations: -
           "..... the fact  that  a  large  number  of  accused  have  been
           acquitted and the remaining who have  been  convicted  are  less
           than five cannot vitiate the conviction under Section  149  read
           with the substantive offence if - as in this case the Court  has
           taken care to find - there are other persons who might not  have
           been identified or convicted but were party  to  the  crime  and
           together constituted the statutory number."




  15. In Dharam Pal and others v. The State of  U.P.[2],  in  paragraph  10,
      expressing similar opinion, this Court observed as under: -
           "..... If, for example, only five known persons are  alleged  to
           have participated in an attack but the courts find that  two  of
           them were falsely implicated, it  would  be  quite  natural  and
           logical to infer or presume that the participants were less than
           five in number. On the other hand, if the Court holds  that  the
           assailants were actually five in number, but there  could  be  a
           doubt as to the identity of two of the alleged assailants,  and,
           therefore, acquits two of them, the  others  will  not  get  the
           benefit of doubt about the identity of the two accused  so  long
           as there is a firm finding, based on  good  evidence  and  sound
           reasoning, that the participants were five or more in number."


  16. In Dahari and others v. State of Uttar Pradesh[3],  in  paragraph  20,
      this Court has held as under: -
           "20. Undoubtedly, this Court has categorically held that in such
           a situation, a conviction cannot be made with the aid of Section
           149 IPC, particularly when, upon the acquittal of  some  of  the
           accused, the total number of accused stands reduced to less than
           five, and it is not the case of the prosecution that  there  are
           in fact, some other accused who have not yet been put to  trial.
           However, it is also a settled legal proposition that in  such  a
           fact  situation,  the  High  Court  could  most  certainly  have
           convicted the appellants, under Section 302 read with Section 34
           IPC."


  17. In Shaji and others v. State of Kerala[4], this Court ,  in  paragraph
      12, has observed as under: -
           "12. In view of the decision of the Constitution Bench in  Mohan
           Singh v. State of Punjab (AIR 1963 SC 174), in the case on hand,
           even after acquittal of the two accused  from  all  the  charges
           levelled against them, if there is any material that  they  were
           members of the unlawful assembly, the conviction  under  Section
           302 can be based with the aid of Section 149."


  18. Shri Ram Jethmalani, learned senior counsel for the  appellants,  next
      submitted before us that even if the prosecution story is taken to  be
      true, the act allegedly committed by the appellants  only  constitutes
      culpable homicide not amounting to murder,  punishable  under  Section
      304 Part II IPC.  In this connection, attention of this Court is drawn
      to Exception 4 to Section 300 IPC, which reads as under: -


           "Exception 4  -  Culpable  homicide  is  not  murder  if  it  is
           committed without premeditation in a sudden fight in the heat of
           passion upon a sudden quarrel and without  the  offender  having
           taken undue advantage or acted in a cruel or unusual manner.


           Explanation - It is immaterial in such cases which party  offers
           the provocation or commits the first assault."


  19. On appreciation of evidence on record of the present  case,  we  agree
      with the contention of the learned senior counsel for  the  appellants
      that since it is a case of sudden fight and there was no premeditation
      on the part of the appellants and the  offenders  have  not  acted  in
      "unusual manner", their acts are covered under Exception 4 to  Section
      300 IPC.  In the similar case in Pulicherla  Nagaraju  alias  Nagaraja
      Reddy v. State of A.P.[5], in paragraph 29, this Court  has  discussed
      the issue as to when the conviction can be converted from  an  offence
      punishable under Section 302 IPC to Section 304 Part I or 304 Part  II
      IPC and the same is reproduced hereunder: -


           "29. Therefore, the court should proceed to decide  the  pivotal
           question of intention, with  care  and  caution,  as  that  will
           decide whether the case falls under Section 302 or 304 Part I or
           304 Part II. Many petty or insignificant matters - plucking of a
           fruit, straying of cattle, quarrel of children, utterance  of  a
           rude  word  or  even  an  objectionable  glance,  may  lead   to
           altercations and group  clashes  culminating  in  deaths.  Usual
           motives like  revenge,  greed,  jealousy  or  suspicion  may  be
           totally absent in such cases. There may be no  intention.  There
           may be  no  premeditation.  In  fact,  there  may  not  even  be
           criminality. At the other end of  the  spectrum,  there  may  be
           cases of murder where the accused attempts to avoid the  penalty
           for murder by attempting to put forth a case that there  was  no
           intention to cause death. It is for the courts  to  ensure  that
           the cases of  murder  punishable  under  Section  302,  are  not
           [pic]converted into offences punishable under Section  304  Part
           I/II, or cases of culpable homicide not amounting to murder, are
           treated as murder punishable under Section 302. The intention to
           cause death can be gathered generally from a  combination  of  a
           few or several of the following, among other, circumstances: (i)
           nature of the weapon used; (ii) whether the weapon  was  carried
           by the accused or was picked up from the spot; (iii) whether the
           blow is aimed at a vital part of the body; (iv)  the  amount  of
           force employed in causing injury; (v) whether the act was in the
           course of sudden quarrel or sudden fight or free for all  fight;
           (vi) whether the incident occurs by chance or whether there  was
           any premeditation; (vii) whether there was any prior  enmity  or
           whether the deceased was a stranger; (viii)  whether  there  was
           any grave and sudden provocation, and if so, the cause for  such
           provocation; (ix) whether it was in the  heat  of  passion;  (x)
           whether  the  person  inflicting  the  injury  has  taken  undue
           advantage or has acted in  a  cruel  and  unusual  manner;  (xi)
           whether the accused dealt a single blow or  several  blows.  The
           above list of circumstances is, of course,  not  exhaustive  and
           there may be several other special circumstances with  reference
           to individual cases which may throw light  on  the  question  of
           intention. Be that as it may."


  20. In view of the above principle of law laid down  by  this  Court,  and
      considering  the  facts  and  circumstances  of  the  case  at   hand,
      particularly, the fact that in the present case it is clear that there
      was a sudden fight between the appellants and  the  deceased  who  was
      accompanied by PW-1 Satya  Charan  Debnath,  PW-2  Kartik  Nath,  PW-3
      Panchanan Debnath and PW-4 Dulal Nath, and  further  considering  that
      there was no premeditation on the part of the appellants to commit the
      murder, we are of the view that it is a fit  case  to  hold  that  the
      offence committed by the appellants is not  punishable  under  Section
      302 IPC, but under Section 304 Part I IPC.


  21. Accordingly, the appeal is partly allowed.   Conviction  and  sentence
      recorded by the courts below under Section 302 read with  Section  149
      IPC is set aside.  Instead, all the three appellants,  namely,  Bivash
      Chandra Debnath @ Patal, Sambhu  Ghosh  @  Sambhu  Charana  Ghosh  and
      Sadananda Mondal, are convicted under Section 304  Part  I  read  with
      Section 34 IPC,  and  each  one  of  them  is  sentenced  to  rigorous
      imprisonment for a period of seven  years.   The  period  of  sentence
      already undergone by them shall be set off from the  sentence  awarded
      by this Court.




                                       ...................................J.
                                                               [Dipak Misra]



                                     .....................................J.
                                                          [Prafulla C. Pant]
      New Delhi;
      April 16, 2015.


      -----------------------
[1] (1974) 4 SCC 603
[2] (1975) 2 SCC 596
[3] (2012) 10 SCC 256
[4] (2011) 5 SCC 423

[5] (2006) 11 SCC 444