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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.      876     OF     2012   (Arising out of S.L.P (Crl.) No.546 OF 2011)

Bishnupada Sarkar & Anr. …Appellants

Versus

State of West Bengal …Respondent

J     U     D     G     M     E     N     T   

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 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

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IPC and sentence of rigorous imprisonment for a period of  

10 years and fine upheld.

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 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 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 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

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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 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 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 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  

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

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witnesses including the Investigating Officer to prove the  

charge while the defence examined Parvat Kumar Paria  

besides placing 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 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 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 deceased and teach him a lesson. It was further  

submitted that the appellant-Bishnu Sarkar is more than 65

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years of age and had already undergone 1½ years sentence  

in jail. He is also afflicted with various age related ailments  

that call for a lenient view in his case.  

6. In so far as appellant no.2 was concerned, Mr.  

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 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  

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.   

8. There is no evidence to suggest any pre-meditation on  

the part of the appellants to assault the deceased leave

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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 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 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 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-Madhab Sarkar. In  

the totality of the circumstances to which we have referred

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above, we are of the view that a rigorous sentence of three  

years to appellant no.1-Bishnu Sarkar and seven years to  

appellant no.2-Madhab Sarkar would meet the ends of  

justice.  The sentence of fine and imprisonment in 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.                  

……………………….……..……J.               (T.S. THAKUR)

………………………….…..……J. (GYAN SUDHA MISRA)

New Delhi July 2, 2012