BIVASH CHANDRA DEBNATH @ BIVASH D & OTHERSversusSTATE OF WEST BENGAL

                       (2015] 3 S.C.R. 906


A   BIVASH CHANDRA DEBNATH @ BIVASH D & OTHERS

                                v.
                   STATE OF WEST BENGAL
B               (Criminal Appeal No. 157 of 2011)

                         APRIL 16, 2015

         [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]

C        Penal Code, 1860: s.302 rlw s.149-Prosecution case
    was that fight took place resulting in death of one and
    injuries to others when appellants three in number along
    with 27 others started digging the land of the complainant
    party for constructing irrigation channel - Trial court
D   convicted the appellants and acquitted other accused -
    High Court upheld the order of trial court - Conviction
    challenged on the ground that only three of the accused
    were found guilty uls.302 rlw s.149 and unless it is proved
E   that unlawful assembly was formed by five or more persons
    the appellants could not have been convicted with the aid
    of s. 149 - Held: 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
F   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 was ample evidence to suggest that the appellants
G   whose role was specifically proved were accompanied with
    others - In view of the facts and circumstances that there
    was a sudden fight and there was no premeditation on the
    part of the appellants to commit the murder, The offence is

H                              906
 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 907
             OF WEST BENGAL

not punishable uls.302 but uls.304 Part I.                 A
    Partly allowing the appeal, the Court
     HELD: 1. There are four eye witnesses who have
deposed about the role of the appellants in commission
of the crime. In his deposition, PW-1 specifically B
stated that the accused-appellants armed with "Daos"
(sharp-edge weapons) caused death of the victim-
deceased by assaulting him with the help of said
weapon. PW-2, PW-3 and PW-4 (all eye witnesses}
corroborated the oral testimony of PW-1. [Paras 10 and C
11] [913"H; 914-B-C]
     2. 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       D
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 was ample evidence to suggest that the         E
appellants whose role is specifically proved on the
record, were accompanied with others. Considering the
facts and circumstances of the case at hand,
particularly, the fact that there was a sudden fight
between the appellants and the deceased who was            F
accompanied by PW-1, PW-2, PW-3, and PW-4 and
further considering that there was no premeditation on
the part of the appellants to commit the murder, it is a
fit case to hold that the offence committed by the         G
appellants is not punishable under Section 302 IPC, but
under Section 304 Part I IPC. [Paras 13, 20] [914-G-H;
915-A-B; 919-D-F]
    Khem Karan and Ors. v. The State of U.P and Anr.
(1974) 4 sec 603: 1974 (3) SCR 863; Dharam Pal and H
908        SUPREME COURT REPORTS                 (2015] 3 S.C.R.


A_ Ors. v. The State of /.J.P. (1975) 2 SCC 596: 1976 (1)
   SCR587; Dahari and Ors. v. State of Uttar Pradesh (2012)
   10 SCC 256: 2012 (8) SCR1219; Shaji and Ors. v. State
   of Kera/a (2011) 5 SCC 423: 2011 (6) SCR210; Pu/icherla
   Nagaraju alias Nagaraja Reddy v. State of A.P. (2006) 11
B SCC 444: 2006 (4)Suppl. SCR633 - relied on.
                         Case Law Reference

        1974 (3) SCR 863            relied on.       Para 14
c       1976 (1) SCR 587            relied on.       Para 15

        2012 (8) SCR 1219           relied on.       Para 16

       2011 (6) SCR 210             relied on.       Para 17
D      2006 (4) Suppl. SCR 633      relied on.       Para 19

         CRIMINAL APPELLATE JURISDICTION : Criminal
      Appeal No. 157 of 2011.

E         From the Judgment and Order dated 02.03.2010 of the
      High Court of Calcutta in C.R.A. No. 235 of 1994.

      Ram Jethmalani, Bijan Kumar Ghosh, Rajeev Tewari,
  Pranav Diesh, P. R. Mala, Karan Kalia, Ashish Dixit for the
F Appellants .
 •       Anip Sachthey, Mohit Paul, Shagun Matta for the
      Respondent.

         The Judgment of the Court was delivered by
G
      PRAFULLA C. PANT, J. 1. 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
H and upheld the conviction and sentence recorded by the
 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 909
     OF WEST BENGAL [PRAFULLA C. PANT, J.]

Additional Sessions Judge, 1'1 Court, Nadia, in Sessions A
Case No. 11(6) 1986/S.T. No. II (3) 1994, against accused/
appellants B.ivash Chandra Debnath, Sambhu Ghosh and
Sadananda Mondal under Section 302 read with Section
149 of Indian Penal Code (IPC).
                                                           B
    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           c
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          D
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        E
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             F
@ 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         G
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        H
910         SUPREME COURT REPORTS               [2015] 3 S.C.R.


A  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
 B 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.
C     Nasrul lsmal 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
D     Debnath, Sambu Ghosh (appellant No. 2). Sidhiram Ghosh,
      Budhadeb Ghosh, Sadana~da Monda! (appellant No. 3).
      Surja Monda!, Dayal Monda!, Biswa Nath Monda!, Nemai
      Monda!, Ranjit Monda!, Jaganath Monda!, Adwaita Monda!,
      Anil Nath, Dulal Monda!, Kartick Biswas, Ganesh Biswas,
E     Srishtidhar Biswas, Dulal Biswal, Sunil Biswas, Santosh
      Biswas, Shim Chandra Nath, Naba Kumar Nath, Narayan
      Chandra Nath, Nirmal Kumar Nath, Gopal Chandra Mondal,
      Anil Monda!, Lakshman Monda! and Biswanath Nath, in
F     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
G 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
H and recorded as many as eight ante mortem injuries,
 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 911
     OF WEST BENGAL [PRAFULLA C. PANT, J.]

including six incised wounds. The Medical Officer prepared A
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 B
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.
                                                                  c
      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 D
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 E
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 F
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 G.
about the incident, and pleaded that the evidence adduced
against them, is false. However, no evidence in defence
appears to have been given.

    8. ,t\fter hearing the parties, the trial court came to the   H
912        SUPREME COURT REPORTS               [2015] 3 S.C.R..


A conclusion that accused Bivash Chandra Debnath @ Pata!,
  Sambhu Ghosh and Sadananda Monda!, 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 JPC
B 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 con-1icts
C Bivash Chandra Debnath, Sambhu Ghosh and Sadananda
  Monda! 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
0
  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
E taken by the trial co~rt. 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
F 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 1Y," muscle deep over the
          front of right elbow.
G
      2)   One incised wound 3" x 1Y," bone deep over the right
           side of head beyond right ear.

            On exploring the wound, the temporal bone was
H          found cut.
 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 913
     OF WEST BENGAL [PRAFULLA C. PANT, J.]

  3)    One incised wound 2Y:z'' x Yz" muscle deep over the     A
       right side angle of jaw.

  4)    One incised wound 2" x 1" muscle deep over the
       lateral side of right knee.
                                                                B
  5)    One incised wound 4" x 1Yz" 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.                      c
  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."   D
      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     E
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,   F
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 G
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 bebnath has narrated the H
914        SUPREME COURT REPORTS                [2015] 3 S.C.R.


A 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
B 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.

C       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
D 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
E 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 g·uilty of the charge
  of offence punishable under Section 302 read with Section
F 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.

G          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 thari 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
H
 BIVASH CHANDRA DEBNATH@ BIVASH D v. STATE 915
     OF WEST BENGAL [PRAFULLA C. PANT, J.]

could not be proved against them beyond reasonable doubt, A
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 B
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 C
aid of Section 34 IPC.

    14. In Khem Karan and others v. The State ofU.P.
and another1, in paragraph 6 this Court has made following
observations: -                                              D

     "..... 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 i f - as E
     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."
                                                             F
     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 G
    alleged to have participated in an attack but the courts
    find that two of them were falsely implicated, it would

1 (1974) 4 sec 603
2 (1975) 2 sec 596                                           H
916         SUPREME COURT REPORTS                 [2015].3 S.C.R.


A         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,
B ·       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."
c
          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
o         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
 E        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."
 F
           17. In Shaji and others v. State of Kerala4, 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),
G
          in the case on hand, even after acquittal of the two
          accused from all the charges levelled against them, if

      3 (2012) 10 sec 2ss

 H    4 (2011) s sec 423
 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 917
     OF WEST BENGAL [PRAFULLA C. PANT, J.]

     there is any material that they were members of the A
     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 B
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 11 IPC. In this connection, attention of this
Court is drawn to Exception 4 to Section 300 IPC, which C
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     o
     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."    E

     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 F
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 Pu/icherla
Nagaraju alias Nagaraja Reddy v. State of A.P. 5 , in
paragraph 29, this Court has discussed the issue as to G
when the conviction can be converted from an offence
3 (2012) 10 sec 256
4 (2011) s sec 423

s c2006) 11 sec 444                                            H
918        SUPREME COURT REPORTS                  [2015] 3 S.C.R.


A     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
B        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
c        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.
D        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
E        to ensure that the cases of murder punishable under
         Section 302, are not .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
F
         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
G        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
H        the incident occurs by chance or whether there was
 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 919
     OF \'VEST BENGAL [PRAFULLA C. PANT, J.]

    any premeditation; (vit) whether there was any prior A
    enmity or whether the deceased was a stranger; (viit)
    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 B
    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 C
    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 D
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 Karlik Nath, PW-3
Panchanan Debnath and PW-4 Dulal Nath, and further E
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, F
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 G
Debnath @ Pata!, 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 H
920          SUPREME COURT REPORTS      [2015] 3 S.C.R.


A period of seven years. The period of sentence already
  undergone by them shall be set off from the sentence
  awarded by this Court.
      Devika Gujral                     Appeal partly allowed .




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