BADAL MURMU AND ORS.versusSTATE OF WEST BENGAL

                     (2014] 2 S.C.R. 323


                BADAL MURMU AND ORS.                               A
                              V.
                STATE OF WEST BENGAL
            (Criminal Appeal No. 1502 of 2004)
                    FEBRUARY 5, 2014
                                                                   B
           [RANJANA PRAKASH DESAI AND
               MADAN B. LOKUR, JJ.)

     Penal Code, 1860: s. 302 r/w s. 149 - Murder - Assault with
lathis leading to death - Two wives of the victim-deceased         C
present at the place of incident where the deceased was
called along with PW- 7 by accused-appellants, witnessed the
incident - PW-7 managed to escape - Deceased was
assaulted with lathis which led to his death - Conviction ul
s.302 rlw s.149 by courts below - On appeal, held: The             D
evidence of the prosecution witnesses was truthful and,
therefore, rightly relied upon by courts below - However, the
evidence on record showed that some of the accused had
tangies (sharp cutting weapon) in their hand but they did not
use it - All accused were stated to have assaulted the             E
deceased simultaneously with /athis - No individual role was
ascribed to any one - Doctor also did not state which injury
was fatal - Therefore all the accused cannot be said to be
guilty of murder - In peculiar facts, it cannot be held that the
accused shared common object to murder the deceased and            F
that in prosecution of that common object they caused his
death - It is unusual case where a trivial incident of theft of
hen by deceased led to his murder - Accused were poor tribals
and have been in jail for 14 years - In the interest of justice,
conviction uls.302 rlw s.149 is set aside and the accused are      G
convicted uls. 304 Part II and the sentence already undergone
by them is directed to be treated a sentence imposed on
 them u/s. 304 Part II /PC.


                             323                                   H
    324     SUPREME COURT REPORTS              [2014] 2 S.C.R.


A      . The prosecution case was that there was inimical
    relation between the deceased and accused family due
    to stealing of hen of one appellant-8 by the deceased. On
    the fateful day, the deceased and PW-7 were called for a
    meeting. When deceased and PW-7 reached the place of
B   meeting, the appellants tied them with a rope against the
    bamboo pole and tree. The appellants were armed with
    lathis and tangies (Sharp cutting weapons). They
    assaulted the deceased with lathis. PW-7 managed to
    escape. The appellants continued to beat the deceased
c   and as a result he died. The two wives of the deceased
    who had followed the deceased to the place of meeting
    saw the incident. The trial court found all the eleven
    appellants guilty and convicted them under section 148
    and section 302 r/w section 149, IPC. The High Court
    affirmed the same. The instant appeal was filed
0
    challenging the order of the High Court.

          Disposing of the appeal, the Court

        HELD: 1. PW-1, the first wife of deceased narrated the
E entire incident after describing the previous incident
  about the stealing of the hen by her husband and the
  penalty imposed by the Salishman. She stated how PW-
  7 was tied to a Kull tree and beaten up; how PW-7 fled
  away and how deceased was beaten to death by using
F lathis by the appellants after tying him to a bamboo pole.
  She did not, however, describe the exact role of each of
  the appellants. She did not state who assaulted where.
  The evidence of PW-3 was on similar lines. PW-6, the
  second wife of deceased also corroborated PW-1 so far
G as the assault on deceased was concerned. PW-7, the
  injured witness described the events that preceded the
  incident. He stated that he somehow managed to escape
  and got himself examined by the doctor. His evidence
  __ 1dicated that out of fear he ran away and did not inform
  anyone about the incident. The doctor PW-9 who did the
H
  BADAL MURMU AND ORS. v. STATE OF WEST                 325
                BENGAL
post-mortem of deceased stated that the death was              A
caused due to the injuries described by him and that the
injuries could be caused by a blunt object like lathi. The
evidence of PW-1, PW-3, PW-6 and PW-7 was truthful and
was· rightly relied upon. They were rustic witnesses and
candidly stated all that they had seen. Pertinently, PW-7      B
did not hesitate to name his brother as one of the
assailants. No doubt, these witnesses were related to
deceased, but the tenor of their evidence was such that
it was not possible to say that they have falsely involved
the appellants. Their evidence had a ring of truth. The        c
prosecution, therefore, proved that the appellants
assaulted deceased with lathis which resulted in his
death. [para 6] [330-F-G; 331-A-F]
     Kirti Mahto & Ors. v. State of Bihar 1994 Supp. (2) SCC
569; Molu & Ors. v. State of Haryana AIR 1976 SC 2499;         D
Munivel v. State of Tamil Nadu (2006) 9 SCC 394: 2006 (3)
SCR 813 ; Alister Anthony Pareira v. State of Maharashtra
(2012) 2 SCC 648: 2012 (1) SCR 145; Kashmiri Lal & Ors.
v. State of Punjab AIR 1997 SC 393: 1996 (5) Suppl. SCR
335 - relied on.                                               E
    . 2. Appellant-B's hen was stolen by deceased. This
dispute was settled. Penalty was paid. Yet, the appellants
called deceased to Saheb Hasda's courtyard. Deceased
went there with PW-7. They were tied to the trees and
beaten up. The attendant circumstances did not indicate        F
that the appellants shared any common object to kill
deceased. Probably, they were not happy with the penalty
imposed by the Salishman. Therefore, they called him to
Saheb Hasda's courtyard and beat him with lathis. If they
wanted to km him, they would have used some sharp              G
cutting weapons. In fact, the evidence on record showed
that some of the appellants had tangies in their hand. PW-
1 stated that some of them had tangies but they did not
use them. Really, if the appellants wanted to kill
deceased, the easiest way to achieve their object would        H
    326    SUPREME COURT REPORTS              [2014) 2 S.C.R.


A have been to use the tangies and assault him. What may
  have started as an exercise to teach a lesson to deceased
  by beating him with lathis, took an ugly turn. In a frenzy,
  lathi blows were dealt with force. It is true that the doctor
  noticed fourteen injuries on the deceased. Most of them
B were bruises and abrasions. All the accused were stated
  to have assaulted the deceased. It is true that there were
  also two rib fractures and haemotoma under the scalp.
  But the doctor had stated that all the injuries led to the
  death of deceased. It was not, therefore, known as to
c which was the fatal injury. Moreover, none of the eye-
  witnesses have stated who caused which injury. No
  individual role was ascribed to any of the appellants. The
  eye-witnesses made an omnibus statement that the
  appellants assaulted the deceased with lathis. It, therefore,
0 cannot said that all the appellants are guilty of murder. In
  the peculiar facts of this case, therefore, it cannot be held
  that the appellants shared common object to murder the
   deceased and in prosecution of that common object they
   caused his death. [paras 7, 8, 10) [331-G-H; 332-B-F; 333-
E C; 334-F]
        Sukhdev Singh v. State of Punjab AIR 1992 SC 755;
    Sarman & Ors. v. State of Madhya Pradesh 1993 Supp. (2)
    sec  356 - relied on.

F     3. There were certain special features in this case,
  which distinguished it from other cases. It is an unusual
  case where a trivial incident led to a murder. The
  appellants as well as the material witnesses belong to
  Santhal community. They are tribals. They come from a
G very poor strata of the society and appear to be
  untouched by the effect of urbanization. They live in their
  own world. They are economically so weak that
  possession of a hen is very important to them. The
  deceased stole a hen, killed it and made a feast out of it.
H This angered the community and the village panchayat
   BADAL MURMU AND ORS. v. STATE OF WEST                327
                 BENGAL
penalized deceased. He was ordered to give a hen to             A
appellant-B and, in addition, he had to give two handies
of liquor. Though, there can be no justification for the
appellants' actions, their anger and reaction to the theft
of hen must be viewed against the background of their
economic and social status. Moreover, the appellants are        B
in jail for almost 14 years. Apart from the legal angle, this
is a case where justice must be tempered with mercy. In
the peculiar circumstances of the case, the appellants is
convicted for culpable homicide not amounting to murder
and sentencing them for the period already undergone            C
by them by resorting to Section 304 Part II of the IPC to
meet the ends of justice. In the circumstances, the
conviction of the appellants for offences punishable
under Section 302 read with Section 149 of the IPC is
quashed and set aside. Instead, they are convicted for          D
culpable homicide not amounting to murder and the
sentence already undergone by them is directed to be
treated as sentence imposed on them under Section 304
Part II of the IPC. The impugned order is modified to the
above extent. [Paras 11, 12] [334-G-H; 335-A-F]
                                                                E
                     Case Law Reference:
   1994 Supp. (2) sec 569      Relied on          Para 4
   AIR 1976 SC 2499            Relied on          Para 4
   2006 (3) SCR 813            Relied on          Para 5        F
   2012 (1) SCR 145        Relied on              Para 5
   1996 (5) Suppl. SCR 335 Relied on              Para 5
   AIR 1992 SC 755         Relied on              Para 8
   1993 Supp. (2) sec 356      Relied on          Para 9        G
     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
 No. 1502 of 2004 .
. .


    From the Judgment and Order dated 20.01.2003 of the
High Court at Calcutta in Criminal Appeal No. 202 of 2000.      H
    328      SUPREME COURT REPORTS                 [2014] 2 S.C.R.


A         Vibha Datta Makhija, Ruchi Agnihotri for the Appellants.

        Anip Sachthey, Kabir S. Bose, Shagun Matta, Saakaar
    Sardana for the Respondents.

          The Judgment of the Court was delivered by
8
        (SMT.) RANJANA PRAKASH DESAI, J. 1. There are
    eleven appellants. All of them were tried by the Additional
    Sessions Judge, Burdwan for offences punishable under
    Section 148 and Section 302 read with Section 149 of the
c   IPC. They were convicted for offences punishable under
    Section 148 and Section 302 read with Section 149 of the IPC
    and sentenced to undergo imprisonment for life for causing
    death of one Jhore Soren ("deceased-Jhore Soren"). The
    appellants' appeal was dismissed by the High Court. Hence,
    the present appeal.
0
          2. The prosecution story could be shortly stated:

       The appellants and the prosecution witnesses belong to
  Santhal Community of village Mobarakpur. In March, 1989,
E deceased-Jhore Soren killed the hen of one Bhagbat. This
  created a furore in Santhal community. A Salish was called and
  the deceased was asked to give one hen and two handies of
  country liquor to Bhagbat as a penalty by the Salish man.
  Deceased-Jhore Soren complied with Salishman's order. On
F 14/4/1989, when deceased-Jhore Soren and PW-7 Kanka
  were discussing the same incident, appellant-Bhagbat
  overheard it and showed his displeasure to PW-7 Kanka.,
  When PW-7 Kanka protested, the appellants Bhagbat, Ragai
  and Sambhu caused bleeding injuries to him. PW-7 Kanka went
G to a doctor and got himself examined. On the next day, in the
  morning, deceased-Jhore Soren and PW-7 Kanka were called.
  to the courtyard of one Saheb Hasda on the pretext that a
  meeting was to be held over the previous day's incident. When
  deceased-Jhore Soren and PW-7 Kanka came to the courtyard
  of Saheb Hasda, they were tied with a rope against one:·
H
     BADAL Mi.JRMU AND ORS. v. STATE OF WEST                 329
       BENGAL [RANJANA PRAKASH DESAI, J.]
bamboo pole and one Kul tree respectively by the appellants. A
The appellants were armed with lathis, tangies (sharp cutting
weapons) etc. They started assaulting deceased-Jhore Soren
and PW-7 Kanka with lathis. PW-7 Kanka managed to escape.
The appellants continued to beat deceased Jhore Soren. He
was beaten to death. Two wives of deceased-Jhore Soren, who B
had followed him to the courtyard of Saheb Hasda, saw the
incident. The women who had assembled there also assaulted
the wives, mother and sister of deceased-Jhore Soren. PW-1
Nilmoni, the first wife of deceased-Jhore Soren rushed to
Memari Police Station and gave her statement. In her c
statement, she named all the appellants as persons, who
assaulted her husband - deceased-Jhore Soren with lathis. On
the basis of her statement, investigation was started and upon
completion of the investigation, the appellants came to be
charged as aforesaid.
                                                               D
     3. The prosecution examined 10 witnesses. The accused
denied the prosecution case. Prosecution case found favour
with the trial court which convicted and sentenced the appellants
as aforesaid. Their conviction and sentence was confirmed by
the High Court.                                                      E

      4. Ms. Makhija, learned amicus, who on our request is
appearing for the appellants, submitted that the prosecution has
failed to prove its case beyond reasonable doubt and, therefore,
the appellants deserve to be acquitted. She submitted that, in       F
any case, if this Court comes to a conclusion that the appellants
are guilty, then it should hold them guilty of culpable homicide
not amounting to murder because there was no intention to kill
the deceased. Counsel submitted that the appellants have
admittedly used lath is and, therefore, Section 304 Part II of the   G
IPC is clearly attracted to this case. In this connection, counsel
relied on Kirti Mahto & Ors. v. State of Bihar1• Counsel
submitted that the injuries are not on the vital part of the
deceased's body. They are superficial in nature. This also
1.   1994 Supp. (2) sec 569.                                         H
     330       SUPREME COURT REPORTS                  [2014] 2 S.C.R.


A    indicates that there was no intention to kill the deceased. In this
     connection, counsel relied on Molu & Ors. v. State of Haryana 2.
     Counsel submitted that the appellants are poor tribals; they are
     in jail for a considerably long time and, .hence, they may be
     sentenced to the period already undergone by resorting to
B    Section 304 Part II of the IPC.

           5. Mr. Anip Sachthey, learned counsel for the State, on the
     other hand, submitted that the ocular evidence establishes the
     prosecution case. Counsel submitted that it is true that the
     appellants used lathis but even if the common object was to
C    inflict injuries, the appellants who were members of the unlawful
     assembly knew that the murder was likely to be committed in
     prosecution of common object and since death was caused,
     every member of the unlawful assembly must be held guilty of
     murder. In support of this submissions, counsel relied on
D    Munivel v. State of Tamil Nadu 3 and Alister Anthony Pareira
     v. State of Maharashtra4 • Counsel submitted that the appellants
     persistently assaulted deceased-Jhore Soren and caused
     grievous injuries to him which resulted in his death. The intention
     to commit murder is clear and, hence, they are guilty of murder.
E    In this connection, he relied on Kashmiri Lal & Ors. v. State of
     Punjab 5 . Counsel submitted that the appeal be dismissed.

          6. PW-1 Nilmoni, the first wife of deceased-Jhore Soren
     narrated the entire incident after describing the previous incident
F    about the stealing of the hen by her husband and the penalty
     imposed by the Salishman. She stated how PW-7 Kanka was
     tied to a Kull tree and beaten up; how PW-7 Kanka fled away
     and how deceased-Jhore Soren was beaten to death by using
     lathis by the appellants after tying him to a bamboo pole. She
G    did not, however, describe the exact role of each of the
     appellants. She did not state who assaulted where. PW-3 Rabi
     2.    AIR 1976 SC 2499.
     3.    (2006) 9 sec 394.
     4.    c2012) 2 sec 648 .
.H   5.    AIR 1997 SC 393.
   BADAL MURMU AND ORS. v. STATE OF WEST                     331
     BENGAL [RANJANA PRAKASH DESAI, J.]
Soren is the sister of deceased-Jhore Soren. Her evidence is        A
on similar lines. PW-6 Sumi Soren, the second wife of
deceased-Jhore Soren also corroborated PW-1 Nilmoni so far
as the assault on deceased-Jhore Soren is concerned. PW-7
Kanka, the injured witness described the events that preceded
the incident and stated how he and deceased-Jhore Soren             B
were tied to trees; how appellants - Badal, Sambhu, Ragai,
Bhagbat and Phangu assaulted deceased-Jhore Soren with
lathis; how appellant Sombha was guarding the place with a
tangi and how the other appellants encouraged them. He stated
that he somehow managed to escape and got h'imself                  c
examined by the doctor. His evidence indicates that out of fear
he ran away and did not inform anyone about the incident. PW-
9 Dr. Prodip Kumar, who did the post-mortem of deceased-
Jhore Soren stated that the death was caused due to the injuries
described by him and that the injuries could be caused by a
                                                                    D
blu.nt object like lathi. The evidence of PW-1 Nilmoni, PW-3
Rabi Soren, PW-6 Sumi Soren and PW-7 Kanka is truthful and
has rightly been relied upon. They are rustic witnesses and have
candidly stated all that they had seen. Pertinently, PW-7 Kanka
did not hesitate to name his brother as one of the assailants.
No doubt, these witnesses are related to deceased-Jhore             E
Soren, but the tenor of their evidence is such that it is not
possible to say that they have falsely involved the appellants.
Their evidence has a ring of truth. The prosecution has,
therefore, proved that the appellants assaulted deceased-
Jhore Soren with lathis which resulted in his death.                F

     7. Now the question is which offence was committed by
the appellants. The cause of this entire episode is very trivial.
Appellant-Bhagbat's hen was stolen by deceased-Jhore Soren.
This dispute was settled. Penalty was paid. Yet, the appellants     G
called deceased-Jhore Soren to Saheb Hasda's courtyard.
Deceased-Jhore Soren went there with PW-7 Kanka. They
were tied to the trees and beaten up. It is argued that these
facts show that the appellants shared common object to kill
deceased-Jhore Soren and in prosecution of the common               H
    332     SUPREME COURT REPORTS                   [2014] 2 S.C.R.


A object, they killed deceased-Jhore Soren. In our opinion, the
  attendant circumstances do not indicate that the appellants
  shared any common object to kill deceased-Jhore Soren. It
  appears that they were no( happy with the penalty imposed by
  the Salishman. Therefore, they called him to Saheb Hasda's
B courtyard and beat him with lathis. If they wanted to kill him, they
  would have used some sharp cutting weapons. In 'tact, the
  evidence on record shows that some of the appellants had
  tangies in their hand. PW-1 Nilmoni stated that some of them
  had tangies but they did not use them. Really, if the appellants
c wanted to kill deceased-Jhore Soren, the easiest way to
  achieve their object would have been to use the tangies and
  assault him. It appears to us that what started as an exercise
  to teach a lesson to deceased-Jhore Soren by beating him with
  lathis, took an ugly turn. In a frenzy lathi blows.were dealt with
  force. It is true that the doctor noticed fourteen injuries on the
0
  deceased. Most of them were bruises and abrasions. It is true
  that there were also two rib fractures and haemotoma under
  the scalp. But the doctor has stated that all the injuries led to
  the death of deceased-Jhore Soren. It is not, therefore, known
  as to which is the fatal injury. Moreover, none of the eye-
E witnesses have stated who caused which injury. No individual
   role is ascribed to any of the appellants. The eye-witnesses
   have made an omnibus statement that the appellants assaulted
  the deceased with lathis.              ·

F       8. In this connection, we may usefully refer to the judgment
  of this Court in Sukhdev Singh v. State ofPunjab6 • In that case,
  the appellant therein was convicted under Section 302 of the
  IPC and sentenced to life imprisonment. The question arose
  as to what was the nature of the offence committed by him. He
G had given one blow to the deceased. Thereafter, the deceased
  had fallen down. That blow, according to the prosecution, was
  sufficient to cause death in the ordinary course of nature. This
  Court accepted the testimony of PW-3, PW-4 and PW-5 as to
  the participation of the appellant therein in the crime. But, it
H 6. AIR 1992 SC 755.
     BADAL MURMU AND ORS. v. STATE OF WEST                       333
       BENGAL [RANJANA PRAKASH DESAI, J.)
rejected their evidence giving specific overt act to each of the A
accused because according to the prosecution, the victim was
surrounded by all the four accused, each one was armed with
weapons and they attacked the deceased simultaneously. This
Court observed that it was therefore difficult to say that fatal
injury was caused by the appellant therein. This Court observed B
that the evidence of the witnesses on that aspect has to be
considered with a pinch of salt. Under the circumstances, the
sentence of the appellant under Section 302 of the IPC was
set aside and he was sentenced under Section 304 Part II of
the IPC. In this case also all the accused are stated to have c
assaulted the deceased simultaneously. No individual role is
ascribed to anyone. The doctor has not stated which injury was
fatal. It is difficult therefore to say that all the appellants are guilty
of murder.

      9. In Sarman & Ors. v. State of Madhya Pradesh 7 , there D
were seventeen injuries on the deceased. The appellants
therein were armed with lathis. They were charged for offences
punishable under Sections 147 and 302 of the IPC. Some
injuries were described as incised wounds. Injury No.15 had
resulted in a depressed fracture of parietal bone. Like the E
present case, the doctor in a general way, stated that the cause
of death was "multiple injuries". He specifically stated that injury
No.15 individually was sufficient to cause death of the
deceased. It must be noted that no such assertion is made by
the doctor in this case. The prosecution case, in general, was F
that all of them were found with lathis. Nobody had stated which
of them had caused injury No.15 which unfortunately resulted
in the death of the deceased. This Court observed that in these
circumstances the question that arises was whether all the
accused were responsible for the death of the deceased. This G
Court noted that if anyone of the appellants had exceeded the
common object and acted on his own, it would be his individual
act but, unfortunately, no witness had come forward to say which
of the accused had caused which injury. This Court noted that
7.   1993 Supp. (2) sec 356.                                            H
      334     SUPREME COURT REPORTS                   (2014] 2 S.C.R.


 A    in those circumstances, it was difficult to award punishment
      under Section 302 read with Section 149 of the IPC. This Court
      noticed that although the post-mortem report stated that all the
      injuries might have caused the death of the deceased inasmuch
      as the accused inflicted injuries with lathis and particularly when
 B    they were simple, and on non-vital parts, it cannot be said that
      their object was to kill the deceased. They may merely have
      knowledge that t~e blows given were likely to cause death. This
      Court, in those circumstances, set aside the conviction of the
      appellants for the offences punishable under section 302 read
 c    with Section 149 of the IPC and instead convicted them for
       offence punishable under Section 304 Part II read with Section
       149 of the IPC.

        10. As earlier noted by us, in this case none of the eye
   witnesses have given specific role to any of the appellants. They
 D have not stated which appellants gave which blow and on which
   part of the deceased's body. They have not stated which injury
   was caused by which accused. The doctor has not stated which
   injury was fatal. Undoubtedly, the deceased had suffered two
   fractures and haemotoma under the scalp, but nobody has said
 E that any particular appellant caused these injuries. It bears
   repetition to state that though sharp cutting weapons i.e. tangies
   were available, the appellants did not use them. In the peculiar
   facts of this case, therefore, it is not possible to hold that the
   appellants shared common object to murder the deceased and
 F in prosecution of that common object they caused his death. It
   would not be possible to sustain their conviction for offence
   punishable under Section 302 read with Section 149 of the IPC.
   It would be just and proper to resort to Section 304 Part II of
   the IPC and treat the sentence already undergone by them as
 G sentence for the said offence.

           11. Before parting we must note certain special features
      of this case, which distinguish it from other cases. It is an
      unusual case where a trivial incident led to a murder. The
      appellants as well as the material witnesses belong to Santhal
. H
  BADAL MURMU AND ORS. v. STATE OF WEST                    335
    BENGAL [RANJANA PRAKASH DESAI, J.]
community. They are tribals. They come from a very poor strata A
of the society and appear to be untouched by the effect of
urbanization. They live in their own world. They are economically
so weak that possession of a hen is very important to them.
The deceased-Jhore Soren stole a hen, killed it and made a
feast out of it. This angered the community and the village B
panchayat penalized deceased- Jhore Soren. He was ordered
to give a hen to appellant Bhagbat and, in addition, he had to
give two handies of liquor. Though, there can be no justification
for the appellants' actions, their anger and reaction to the theft
of hen must be viewed against the background of their             c
economic and social status. Moreover, we are informed that
the appellants are in jail for almost 14 years. Apart from the legal
angle, this, in our view, is a case where justice must be
tempered with mercy. In the peculiar circumstances of the case,
in our opinion, convicting the appellants for culpable homicide D
not amounting to murder and sentencing them for the period
already undergone by them by resorting to Section 304 Part II
of the IPC will meet the ends of justice.

       12. In the circumstances, the conviction of the appellants
for offences punishable under Section 302 read with Section E
149 of the IPC is quashed and set aside. Instead, they are
convicted for culpable homicide not amounting to murder and
the sentence already undergone by them is directed to be
treated as sentence imposed on them under Section 304 Part
II ·of the IPC. The impugned order is modified to the above F
extent. The appellants are in jail. They are directed to be
released forthwith unless they are otherwise required in any
other case. The appeal is disposed of.

D.G.                                      Appeal disposed of.     G