DILIP KUMAR MONDAL & ANR Vs. STATE OF WEST BENGAL
CODE OF CRIMINAL PROCEDURE, 1973 (CrPC)
Section 161 - Examination of witnesses by police
Section 313 - Power to examine the accused.
Section 34 - Acts done by several persons in futherance of common intention
Section 302 - Punishment for murder
Section 304 - Punishment for culpable homicide not amounting to murder
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 82 of 2015, Judgment Date: Jan 14, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 82 OF 2015
(Arising out of SLP (Crl.) No. 9447/2012)
DILIP KUMAR MONDAL & ANR. .. Appellants
Versus
STATE OF WEST BENGAL .. Respondent
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. This appeal arises out of the judgment of the Calcutta High
Court dated 13.2.2012 passed in C.R.A. No.747/2008, in and by which, the
High Court confirmed the conviction of the appellants under Section 302/34
IPC and the sentence of life imprisonment imposed upon them and set aside
the conviction of the appellants under Section 326 IPC.
3. Briefly stated case of the prosecution is as under:-
Complainant - PW 3 -Fatik Chandra Debnath is the brother of the deceased
Nripen Debnath. On 22.11.1998 at about 10.00 A.M. the complainant along
with his two sons namely, PW-11 Ranjit Debnath and PW-12 Santosh Debnath
was doing agricultural work in his field-collecting harvested paddy crops
and tying the same. Deceased Nripen Debnath, brother of the complainant
and his son Nikhil Debnath (PW-10) proceeded towards the field in a
bullock cart for bringing the bundles of harvested paddy crops. The
only way to reach their field was through the field belonging to the
accused persons and as soon as the bullock cart touched the border of the
field of the accused, the accused took exception to the same, which
resulted in a wordy altercation between the parties and injuries were
inflicted by the appellants on the deceased and witnesses. Appellant
Dinesh inflicted injuries in the abdomen of Nripen Debnath with the pasli
and the appellant Dilip attacked him with a dau. The other two accused
also assaulted the deceased. When Nikhil Debnath (PW-10) tried to rescue
his father, he was also badly beaten by the accused. On seeing the
incident, PW-3 -Fatik Chandra Debnath rushed to the place of incident and
raised alarm. In the process, PW 11-Ranjit Debnath and PW-12-Santosh
Debnath also sustained injuries. On hearing hues and cries, the villagers
gathered at the place and the accused fled away.
4. All the four injured persons were immediately taken to
Godhanpara Hospital wherein PW-10-Nikhil Debnath and PW-11 -Ranjit
Debnath were discharged after first aid. As the condition of Nripen
Debnath and PW-12 Santosh Debnath was precarious, they were referred to
N.G. Hospital, Berhampore. Nripen Debnath succumbed to the injuries on his
way to the hospital.
5. Law was set in motion by PW-3 Fatik Chandra Debnath by
lodging a complaint at Police Station Raninagar, District Murshidabad. On
the basis of the complaint, a case was registered under Section 302/34 IPC
and 326/34 IPC against the accused persons. PW-14 Dr. Gobinda Banerjee
conducted autopsy on the body of Nripen Debnath and PW-14 opined that the
death was due to shock and haemorrhage and issued Ex P6-Post mortem
certificate. After completion of due investigation, chargesheet was filed
against the appellants and two other accused under the above stated
provisions. To prove the charges against the accused, prosecution has
examined 16 witnesses and exhibited a number of documents and material
objects. The accused were questioned under Section 313 Cr.P.C. about the
incriminating evidence and the circumstances but the accused denied all of
them and pleaded innocence. The accused have stated that they have been
falsely implicated due to political rivalry and they have been
victimized .
6. Upon consideration of oral and documentary evidence, the
Sessions Court convicted the appellants under Sections 302/34 IPC and
326/34 IPC and sentenced them to undergo imprisonment for life and to pay
a fine of Rs.2000/- with default clause. For the offence under Section 326
IPC, the accused were sentenced to undergo imprisonment for three years and
to pay a fine of Rs.1000/- with default clause. Accused Arjun Mondal was
acquitted of all the charges giving him the benefit of doubt. Fourth
accused-Vipad died pending trial. Aggrieved by the conviction, the
appellants preferred appeal before the High Court of Calcutta which by the
impugned judgment has confirmed the conviction of the appellants under
Section 302/34 IPC and the sentence of life imprisonment imposed on them.
Their conviction under Section 326 IPC was set aside. Being aggrieved, the
appellants have preferred this appeal by special leave.
7. Assailing the conviction of the appellants, learned counsel for
the appellants contended that the testimony of the witnesses suffered from
serious contradictions and inconsistencies and they could not be said to be
reliable. It was submitted that the appellants had been falsely implicated
in the case on account of political rivalry, which aspect was not
properly considered by the courts below.
8. Contrariwise, learned counsel appearing for the respondent-
State contended that there is no material contradiction in the testimony of
the witnesses affecting their veracity. It was contended that the accused
were already armed with deadly weapons with which the appellants inflicted
injuries on the deceased and the complainant party. It was submitted that
after inflicting fatal injuries on the deceased, appellant Dilip rushed to
hospital, just only to evade arrest. It was urged that there is no
political rivalry between the parties and courts below rightly negatived
the defence put forth by the appellants.
9. We have given our thoughtful consideration to the contentions
urged by the counsel for the parties and perused the impugned judgment and
the materials on record.
10. PW-3-Fatik Chandra Debnath, brother of the deceased, has
deposed that at the relevant time he was busy in the field with his sons in
collecting the harvested paddy and he witnessed the incident from his
field which is adjacent to the place of incident. PW-3 stated that the
appellants assaulted his brother Nripen Debnath in the abdomen and when his
nephew Nikhil, PW-3 rushed with his sons PW-11 Ranjit Debnath and PW-12
Santosh Debnath to rescue his brother, his sons PWs 11 and 12 were also
assaulted. PW-3 being the eye-witness, his evidence was relied upon as
creditworthy by the courts below.
11. Evidence of PW-3-Fatik Chandra Debnath is assailed contending
that in the complaint lodged by him, it is not mentioned that Dilip caused
hurt to Nripen Debnath with dau and the only fact that is mentioned there
is that appellant Dinesh chopped the stomach of the deceased and other
accused also joined in the assault. Additionally, it was submitted that
PW-3 had rushed to the place of occurrence only after the fight had
started, so there arose doubt as to the veracity of PW-3. Insofar as the
contention that the details of attack with dau are not mentioned in the
complaint, by and large, people cannot be expected to have a photographic
memory of the incident to recall the minute details of the incident.
Immediately after the incident, PW-3 must have been under shock and in such
disturbed mental condition, while he was narrating the incident to Pradhan
of village to reduce the complaint into writing, PW-3 might have omitted
to mention that Dilip caused hurt to Nripen Debnath with dau. Such
omission, in our considered view, does not affect the credibility of
evidence of PW-3. Insofar as the plea that PW-3 could not have witnessed
the assault as he reached the scene after the fight started is not
sustainable for the reason that the place of occurrence is just adjacent
land within a short distance. Obviously, even from his field, PW-3 must
have seen the attack before he rushed to the rescue of his brother Nripen
Debnath.
12. PW-10 Nikhil Debnath son of deceased Nripen Debnath has also
sustained injuries while he was trying to rescue his father and PW-10 had
spoken about the incident. PW-10 Nikhil Debnath deposed that on
22.11.1998 at about 10.00 A.M. while he was proceeding with his father on a
bullock cart towards the field where his uncle PW-3-Fatik Chandra Debnath
was collecting harvested paddy crops, the accused persons who were in their
landed property shouted that no one could enter the landed property and
immediately after their entering the land of the accused, the appellants
attacked his father and inflicted injuries on him and when PW-10 tried to
rescue his father, they also assaulted him. PW-11 -Ranjit Debnath son of
PW-3 -Fatik Chandra Debnath who also sustained injuries had deposed that
the accused threatened the deceased as soon as bullock cart entered the
land of the accused saying "saladarka aj sosana pathabo" which means "we
will send the rascals to the crematory". PW-11 further stated that Nripen
Debnath came down from the bullock cart, appellant-Dinesh caused injuries
with henso and Dilip attacked him with a dau and when PW-11-Ranjit Debnath
and PW-12-Santosh Debnath tried to intervene, the accused (Arjun and Bipad)
attacked them with a lathi. Evidence of PW-11 amply corroborates the
evidence of PWs 3 and 10.
13. Evidence of injured witnesses PWs 10 and 11 lends credence to
their testimony and their evidence is entitled to great weight. Very much
convincing ground is essential to discard the evidence of the injured
witnesses PWs 10 and 11. Despite searching cross-examination, nothing
substantial was elicited from PWs 10 and 11 to discredit their evidence.
14. PW-6 Anil Kumar Mondal who was doing agricultural work in his
field had also stated that he had heard one jhamela and when he went to
the place of incident, a maramari took place. PW-6 had spoken about the
overt act of each of the appellants and causing injuries to the
deceased and others. PW-8 Mastoram Debnath labourer who was working in
the field of the deceased at that time had also deposed that an
altercation crept up between the parties.
15. As far as evidence of PW-2-Abul Kasim Sk is concerned, the
courts below have rightly recorded him unworthy of credit as he stated
that Nripen Debnath was lying dead on a village road. As pointed out by
the courts below, it appears that PW-2 has just deposed whatever he heard
from others. PW-4 -Intajul Haque, an agricultural labourer had deposed the
incident and the overt act of the appellants in causing hurt to Nripen
and that while PW-10 -Nikhil Debnath attempted to save his father,
Dilip caused hurt to Nikhil with dau and that all the accused attacked
sons of PW-3 Fatik Chandra Debnath with bamboo split. During
investigation, statement of PW-4 was not recorded by the investigating
officer under Section 161 Cr.P.C. and the High Court rightly declined to
take notice of the evidence of PW-4. Likewise, High Court has also rightly
rejected the testimony of PW-5 Karuna Krishna Sarkar who had stated that he
saw the accused running through his house and that he witnessed the
incident from his garden.
16. The contradiction pointed out in the evidence of the witnesses
and the discrepancies in the prosecution case were duly considered by the
courts below. The contradictions so pointed out by the appellants do not
create infirmity in the prosecution case. The core of the prosecution
story remains the same that Nripen Debnath and his son PW-10 Nikhil Debnath
along with two sons (Ranjit Debnath and Santosh Debnath) of PW-3 Fatik
Chandra Debnath were assaulted by the accused on their landed property.
The defence plea that the false case has been foisted on the accused due to
political rivalry is not substantiated by the appellants.
17. On the evidence of PW-3-Fatik Chandra Debnath, injured
witnesses PWs-10 to 12 - Nikhil Debnath, Ranjit Debnath and Santosh
Debnath and other witnesses PWs 6 and 8, the courts below have recorded
concurrent findings of fact that the appellants have inflicted fatal
injuries on the deceased Nripen Debnath and the concurrent findings so
recorded are unassailable.
18. Having agreed with the findings of the courts below that the
appellants inflicted fatal injuries on the body of the deceased, it is to
be ascertained whether or not it was a result of pre-meditation and
whether the conviction of the appellants under Section 302 IPC is
sustainable. So far as this question is concerned, facts and
circumstances of the case and the statement of the witnesses are to be
examined. As pointed out earlier, the accused persons were objecting to
the entry of the bullock cart in their field and before the attack, there
was a wordy altercation. PW-6 Anil Kumar Mondal had also deposed that he
heard jhamela and when he rushed to the place of offence, he noticed a
maramari took place and the appellants inflicted injuries on Nripen and
PW-10 Nikhil Debnath. PW-10 son of deceased himself deposed that
accused persons were guarding their landed property so that no one
enters their land and as he along with his father Nripen entered their
land in their bullock cart, the accused persons restrained them saying
"sala toder gari jete debo na". PW-11-Ranjit Debnath, another injured
witness had also spoken that there was fight between the parties.
19. The High Court had referred to the evidence and the defence put
forth by the appellants that the incident was a sudden fight between the
parties. The High Court declined to invoke Exception 4 to Section 300 on
the grounds that:- (i) the defence plea of sudden fight was not clearly
put forth by the accused during their questioning under Section 313
Cr.P.C.; (ii) even assuming that there was a sudden fight, and that four
accused persons were injured, there is nothing to suggest that the
complainant party were the aggressors, the injuries must have been
inflicted on the accused only to prevent the complainant party from
entering the field of the complainant party and in self defence.
20. Learned counsel for the appellants contended that the defence
emerging from the evidence is that the appellants have been objecting to
the user of any part of their field for the purpose of ingress and egress
of the bullock cart and inspite thereof the complainant party armed with
deadly weapons tried to pass their bullock cart through their field as a
result whereof, a free fight ensued in which the appellants and two
other accused persons sustained injuries and while so the High Court
failed to appreciate that there was no premeditation and the entire
incident was due to a sudden fight and the High Court ought to have
invoked Exception 4 to Section 300 IPC.
21. Exception 4 to Section 300 IPC 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."
In order to invoke the applicability of Exception 4 to Section 300 IPC, the
following conditions are to be satisfied namely:
that the incident happened 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."
22. This Court in Sridhar Bhuyan vs. State of Orissa (2004) 11 SCC
395, reaffirmed the same and held as under:-
"For bringing in operation of Exception 4 to Section 300 IPC, it has to be
established that the act was committed without premeditation, in a sudden
[pic]fight in the heat of passion upon a sudden quarrel without the
offender having taken undue advantage and not having acted in a cruel or
unusual manner.
The fourth exception of Section 300 IPC covers acts done in a sudden fight.
The said exception deals with a case of prosecution not covered by the
first exception, after which its place would have been more appropriate.
The exception is founded upon the same principle, for in both there is
absence of premeditation. But, while in the case of Exception 1 there is
total deprivation of self-control, in case of Exception 4, there is only
that heat of passion which clouds men's sober reason and urges them to
deeds which they would not otherwise do. There is provocation in Exception
4 as in Exception 1; but the injury done is not the direct consequence of
that provocation. In fact Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or some provocation given
in the origin of the dispute or in whatever way the quarrel may have
originated, yet the subsequent conduct of both parties puts them in respect
of guilt upon equal footing. A "sudden fight" implies mutual provocation
and blows on each side. The homicide committed is then clearly not
traceable to unilateral provocation, nor in such cases could the whole
blame be placed on one side. For if it were so, the exception more
appropriately applicable would be Exception 1. There is no previous
deliberation or determination to fight. A fight suddenly takes place, for
which both parties are more or less to be blamed. It may be that one of
them starts it, but if the other had not aggravated it by his own conduct
it would not have taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to apportion the share of
blame which attaches to each fighter. The help of Exception 4 can be
invoked if death is caused: (a) without premeditation; (b) in a sudden
fight; (c) without the offender's having taken undue advantage or acted in
a cruel or unusual manner; and (d) the fight must have been with the person
killed. To bring a case within Exception 4 all the ingredients mentioned in
it must be found. It is to be noted that the "fight" occurring in Exception
4 to Section 300 IPC is not defined in IPC. It takes two to make a fight.
Heat of passion requires that there must be no time for the passions to
cool down and in this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A fight is a combat
between two and more persons whether with or without weapons. It is not
possible to enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel is sudden or
not must necessarily depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be shown
that the offender has not taken undue advantage or acted in a cruel or
unusual manner. The expression "undue advantage" as used in the provision
means "unfair advantage".
23. Considering the totality of the facts and circumstances of the
case, we are unable to agree with the view taken by the courts below that
the incident was a premeditated one. As discussed earlier, the accused had
been objecting to the ingress and egress of the bullock cart in their field
and no sooner did the deceased try to enter their field, than a free fight
ensued between the parties. Insofar as the contention of the prosecution,
that the accused were already armed with deadly weapons to pounce upon
the deceased-complainant party, it appears to be not acceptable as the
accused party were proceeding to their fields for carrying out their
agricultural work and, therefore, it is quite normal for them to
possess such agricultural instruments which are used as weapons in this
case. Upon consideration of the entire evidence and the facts and
circumstances of the case, in our view, there was no premeditation on the
part of the appellants and the incident was a sudden fight.
24. In order to invoke Exception 4 to Section 300 IPC, it must be
further shown that the offender has not taken undue advantage or acted in a
cruel or unusual manner. The appellants are said to have inflicted
injuries with henso and dau. By a perusal of Ext. P6 post-mortem
certificate, it is seen that the deceased sustained one incised injury on
the back which has caused injury to scapula and spinal cord and another
incised wound over the back just below the right scapula causing injury to
the right lung and pleura. Insofar as the injuries caused to Ranjit
Debnath and Santosh Debnath, there is no sufficient evidence as to the
alleged injuries caused to them. As far as PW-10-Nikhil Debnath is
concerned, he was discharged from the hospital after giving first aid
treatment indicating thereby that the injury was not grievous. Considering
the injuries, in our view, it cannot be said that the accused have taken
undue advantage of the situation. The incident was not premeditated and
the scuffle between the parties led to the causing of injuries to the
deceased Nripen Debnath and considering the circumstances of the case, in
our view, the offence would fall under Section 300 IPC Exception 4 and the
conviction of the appellants is to be modified and altered under Section
304 Part I IPC.
25. In the result, the conviction of the appellants under Section
302/34 IPC is altered to one under Section 304 Part I IPC and the
appellants are sentenced to undergo imprisonment for a period of ten years.
The appeal stands allowed to the above extent.
.................................J.
(T.S. Thakur)
.................................J.
(R. Banumathi)
New Delhi;
January 14, 2015
ITEM NO.1A-For Judgment COURT NO.11 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Crl. A.NO....../2015 arising from SLP (Crl.) No(s). 9447/2012
(Arising out of impugned final judgment and order dated 13/02/2012 in CRA
No. 747/2008 passed by the High Court Of Calcutta)
DILIP KUMAR MONDAL & ANR Petitioner(s)
VERSUS
STATE OF WEST BENGAL Respondent(s)
Date : 14/01/2015 This petition was called on for pronouncement of JUDGMENT
today.
For Petitioner(s)
Mr. Mithilesh Kumar Singh,Adv.
For Respondent(s)
Mr. Anip Sachthey,Adv.
Hon'ble Mrs. Justice R. Banumathi pronounced the judgment of
the Bench comprising Hon'ble Mr. Justice T.S. Thakur and Hon'ble Mrs.
Justice R. Banumathi.
Leave granted.
The appeal is allowed in terms of the signed order.
(VINOD KR. JHA) (RENU DIWAN)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file)
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