BISHNUPADA SARKAR & ANR.versusSTATE OF WEST BENGAL

                         [2012] 6 S.C.R. 230


A                  BISHNUPADA SARKAR & ANR.
                                  v.
                     STATE OF WEST BENGAL
                  (Criminal Appeal No.876 of 2012)
                             JULY 2, 2012
B
         [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.]

          Penal Code, 1860: s. 304 (Part I) rlw s.34 - Culpable
    homicide not amounting to murder - Verbal altercation
C   between the victim-deceased and uncle of appellants - Next
    cfay, appel/a,nt no. 2, brother of appellant no. 1 called the son
    of the deceased outside his house near the drain and started
    beating him - When deceased intervened, appellant no.2
    started beating the deceased with fists and blows - Appel/ant
D   no. 1 was allegedly standing nearby and instigating him -
    Deceased succumbed to injuries inflicted - Trial court
    convicted both the appellants u/s.304 Part I rlw s.34 and
    sentenced to undergo rigorous imprisonment for ten years
    besides a fine of Rs.5000 each and in default to suffer further
E   imprisonment for a period of one year - High Court upheld
    the conviction and sentence - On appeal, held: There was no
    evidence to suggest any pre-meditation on the part of the
    appellants to assault .the deceased or to show that they
    intended to kill the deceased - There was no previous enmity
F   between the parties who were residents of the same lqcality
    except that there was a minor incident in which some hot
    words were exchanged between the deceased and uncle of
    appellants - Even on the following day, the incident near the
    drain involved appellant No. 1 and the complainant-son of the
    deceased - It was only when the deceased noticed the
G   incident and intervened to save his son that appellant no.2
    started assaulting the deceased and inflicted injuries on his
    body that resulted in his death - Both the courts below
    believed the prosecution case that appellant no. 1 was

H                                 230
BISHNUPADA SARKAR & ANR. v. STATE OF WEST 231
                BENGAL
exhorting appellant no. 2 to assault the deceased and,             A
therefore, rightly convicted him u/s.304 Part I with the help of
s. 34 - A distinction has, however, to be made in the facts and
circumstances of the case between the sentence awarded to
the appellant no. 1 who is over sixty five years old and that to
be awarded to appellant no. 2 - In the totality of the             B
circumstances, a rigorous sentence of three years to
appellant no. 1 and seven years to appellant no. 2 meet the
ends of justice - Sentence/Sentencing.

     The prosecution case was that one day prior to the C
incident, the victim-deceased protested against the
nuisance committed by one 'S' in front of his house. This
led to verbal altercation. The next day, appellant no.1 who
was nephew of 'S' came to the house of the deceased
and threatened him. In the evening of the same day,
appellant no.2, the brother of appellant no.1 called the D
son of the deceased outside his house near the drain .
and started beating him. The deceased who was leaving
for market intervened to save his son. Appellant no.2
started beating the deceased with fists and blows.
Appellant no.1 was allegedly standing nearby and E
instigating him. The son of the deceased cried for help
that attracted local people who rushed to the spot and
took the deceased to hospital in injured condition where
he succumbed to injuries inflicted by appellant no.2 with
a brick.                                                    F

    The trial court convicted both the appellants under
Section 304 Part I r/w Section 34 IPC and sentenced to
undergo rigorous imprisonment for ten years besides a
fine of Rs.5000 each and in default to suffer further              G
imprisonment for a period of one year. The High Court
upheld the conviction and sentence. The instant appeal
was filed 'challenging the order of the High Court.

    Partly allowing the appeal, the Court
                                                                   H
    232     SUPREME COURT REPORTS            [2012) 6 S.C.R.


A      HELD: There was no evidence to suggest any pre-
  meditation on the part of the appellants to assault the
  deceased or to show that assailants intended to kill the
  deceased. There was no previous enmity between the
  parties who were residents of the same locality except
B that there was a minor incident in which some hot words
  were exchanged between the deceased and 'S'. Even on
  the following day, the incident near the drain involved
  appellant No.1 and the complainant-son of the deceased.
  It was only when the deceased noticed the incident and
c intervened to save the complainant, that appellant no.2
  started assaulting the deceased and inflicted injuries on
  his body that resulted in his death. Both the courts below
  have no doubt believed the prosecution case that
  appellant no.1 was exhorting appellant no.2 to assault the
  deceased and, therefore, convicted him under Section
0
  304 Part I with the help of Section 34 IPC. A distinction
  has, however, to be made in the facts and circumstances
  of the case between the sentence awarded to the
  appellant no.1 who is over sixty five years old and that
  to be awarded to appellant no.2. In the totality of the
E circumstances, a rigorous sentence of three years to
  appellant no.1 and seven years to appellant no.2- would
  meet the ends of justice. The sentence of fine and
  imprisonment in default of payment thereof will, however,
  remain unaltered. [Para 8] [235-D-H; 236-A-B]
F
       CRIMINAL APP ELLATE JURISDICTION : Civil Appeal No.
  876 of 2012.
      From the Judgment & Order dated 15. 7 .2010 of the High
G Court of Calcutta in C.R.A. No. 641 of 2006.
         Ranjan Mukherjee, Mangaaljit Mukherjee, S. Bhowmick,
    S.C. Ghosh, Garima Bose for the Appellant.       ·

      Chandra Bhushan Prasad, Kripa Shankar Prasad, Anip
H Sachthey, Mohit Paul, Shagun Matta for the Respondent.
 BISHNUPADA SARKAR & ANR. v. STATE OF WEST 233
                 BENGAL
     The Judgment of the Court was delivered by                    A

     T.S. THAKUR, J. 1. Leave granted.

    2. This appeal arises out of a judgment and order dated
15th July, 2010 passed by the High Court of judicature at
Calcutta whereby Criminal Appeal No.641 of 2006 filed by the       8
appellants has been dismissed and their conviction for the
offence of culpable homicide not amounting to murder
punishable under Section 304 Part I read with Section 34 IPC
and sentence of rigorous imprisonment for a period of 10 years
and fine upheld.                                                   C

       3. Facts giving rise to the commission of the offence by
  the appellants and their eventual conviction have been set out
  in the judgment under appeal which need not be recounted
  again especially because notice in this appeal was issued by o
  us limited to the question of quantum of sentence to be
  awarded to the appellants. Suffice it to say that the unfortunate
  incident in which the deceased-Shyamalendu who was then
  working as Income Tax Inspector did no more than object to the
  commission of the nuisance in front of his house escalated into E
  an uncalled for assault on him that culminated in his death. The
  prosecution case is that on 21st May, 2001 at about 7.00 p.m.
  Sudhir who was also a resident of the same locality was found
  committing nuisance in an open drain in front of the house of
. the deceased. The deceased appears to have objected to the
                                                                    F
  nuisance leading to a verbal altercation between the two. On
  the following day at about 11.30 a.m. the appellant Bishnu
  Sarkar who happens to be the nephew of Sudhir came to the
  house of the deceased and threatened him. The deceased tried
  to reason with the appellant Bishnu Sarkar that he had done
  nothing wrong in protesting against the nuisance. At about 6.00 G
  p.m. in the evening on the same day Madhav Sarkar, appellant
  No.2 and brother of Bishnu Sarkar is alleged to have called
  PW-1 Debabrato Mazumder son of the deceased and the
  complainant in the case to the slab near the drain and started
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    234      SUPREME COURT REPORTS                 [2012] 6 S.C.R.


A beating him. The deceased who was leaving for the market
  intervened to save Debabrato Mazumder. Madhav Sarkar left
  the complainant and started beating the deceased with fists and
  blows. Appellant Bishnu Sarkar was allegedly standing nearby
  and instigating him. The complainant cried for help that
B attracted some local people who rushed to the place and took
  the deceased to the hospital in an injured condition where he
  succumbed to the injuries inflicted by Madhav Sarkar-appellant
  no.2 with the help of a brick.

        4. The police filed a charge-sheet against the appellants
C after completing the investigation for commission of offences
  punishable under Section 304 read with Section 34 IPC. At the
  trial the prosecution examined as many--as .13 witnesses
  including the Investigating Officer to prove the charge While the
  defence examined Parvat Kumar Paria besides placing
D reliance on certain documents. By its order dated 30th August,
  2006 the Trial Court came to the conclusion that the deceased
  had died a homicidal death because of the injuries inflicted by
  Madhab Sarkar-appellant no.2 at the exhortation of appellant
  no.1-Bishnu Sarkar. Both of them were accordingly convicted
E under Section 304 Part I read with Section 34 IPC and
  sentenced to undergo rigorous imprisonment for ten years
  besides a fine of Rs.5,000/- each and in default to suffer further
  imprisonment for a period of one year. The High Court by the
  order impugned before us affirmed the said conviction. and
F sentence while dismissing the appeal filed by the appellants.

        5. Appearing for the appellants Mr. Ranjan Mukherjee
  submitted that the appellant-Bishnu Sarkar had not inflicted any
  injury on the deceased and that all that was alleged against him
  was that he exhorted appellant no.2-Madhab to assault the
G deceased and teach him a lesson. It was further submitted that
  the appellant-Bishnu Sarkar is more than 65 years of age and
  had already undergone 1Y:2 years sentence in jail. He is also
  afflicted with various age related ailments that call for a lenient
  view in his case.
H
BISHNUPADA SARKAR & ANR. v. STATE OP WEST 235
          BENGAL [T.S. THAKUR, J.]
     6. In so far as appellant no.2 was concerned, Mr.             A
Mukherjee argued that the incident was more than 12 years old
and that a drawn long trial and proceedings in appeal have
already put the said appellant to tremendous financial and
physical hardship. Being the only earning member of the family
even appellant no.2, argued Mr. Mukherjee, deserves a              B
reduction in the sentence especially when there was no
intention to kill the deceased and the whole incident had taken
place in the heat of passion on account of a sudden quarrel
unfortunately culminating in the demise of the deceased.

     7. Learned counsel appearing for the respondent, on the       C
other hand, argued that the nature of injuries sustained by the
deceased and the manner in which the incident had taken place
did not justify the reduction in the sentence awarded to the
appellants.
                                                                   D
      8. There is no evidence to suggest any pre-meditation on
the part of the appellants to assault the deceased leave alone
evidence to show that assailants intended to kill the deceased.
There was no previous enmity between the parties who were
residents of the same locality except that there was a minor       E
incident in which some hot words were exchanged between the
deceased and Sudhir. Even on the following day i.e. on 22nd
 May, 2001 the incident near the drain involved the appellant-
Bishnu Sarkar and the complainant- Debabrato Mazumder son
of the deceased. It was only when the deceased noticed the         F
incident and intervened to save the complainant, that Madhab
Sarkar started assaulting the deceased and inflicted injuries on
his body that resulted in his death. Both the Courts below have
no doubt believed the prosecution case that appellant-Bishnu
Sarkar was exhorting appellant-Madhab Sarkar to assault the
deceased and, therefore, convicted him under Section 304 Part      G
I with the help of Section 34 IPC. A distinction has, however,
to be made in the facts and circumstances of the case between
the sentence awarded to the appellant-Bishnu Sarkar who 'is
over sixty five years old and that to be awarded to appellant-
                                                                   H
    236     SUPREME COURT REPORTS               [2012) 6 S.C.R.


A Madhab Sarkar. In the totality of the circumstances to which we
  have referred above, we are of the view that a rigorous
  sentence of three years to appellant no.1-Bishnu Poda Sarkar
  and seven years to appellant no.2-Madhab Sarkar would meet
  the ends of justice. The sentence of fine and imprisonment in
B default of payment thereof will, however, remain unaltered. We
  accordingly allow the appeal in part and to the extent indicated
  above in modification of the orders passed by the Courts below.

    D.G.                                  Appeal Partly allowed.