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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 157 OF 2011

Bivash Chandra Debnath @ Bivash D & others … Appellants

Versus

State of West Bengal … Respondent

J U D G M E N T

Prafulla C. Pant, J.

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 and upheld the conviction

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and sentence recorded by the Additional Sessions Judge, 1st  

Court, Nadia, in Sessions Case No. 11(6) 1986/S.T. No. II (3)  

1994, against accused/appellants Bivash Chandra Debnath,  

Sambhu Ghosh and Sadananda Mondal under Section 302  

read with Section 149 of Indian Penal Code (IPC).

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  

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  

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 of

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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  @ 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 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 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  Panchanan  Debnath  and  

Basudeb Nath were taken to hospital for medical treatment.

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4. The First Information Report of the incident was given  

orally  by PW-1 Satya Charan Debnath to PW-6 S.I.  Nasrul  

Ismal 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  Debnath,  

Sambu Ghosh (appellant No. 2), Sidhiram Ghosh, Budhadeb  

Ghosh, Sadananda Mondal (appellant No. 3), Surja Mondal,  

Dayal  Mondal,  Biswa  Nath  Mondal,  Nemai  Mondal,  Ranjit  

Mondal, Jaganath Mondal, Adwaita Mondal, Anil Nath, Dulal  

Mondal, Kartick Biswas, Ganesh Biswas, Srishtidhar Biswas,  

Dulal  Biswal,  Sunil  Biswas,  Santosh Biswas,  Bhim Chandra  

Nath,  Naba  Kumar  Nath,  Narayan  Chandra  Nath,  Nirmal  

Kumar Nath, Gopal Chandra Mondal, Anil Mondal, Lakshman  

Mondal  and  Biswanath  Nath,  in  respect  of  offences  

punishable under Sections 147, 148, 149, 447, 326 and 302  

IPC.  

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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  

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 and  

recorded as many as eight ante mortem injuries, including  

six incised wounds.  The Medical Officer prepared 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 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.

6. The trial court, after hearing the parties, framed charge  

of  offences  punishable  under  Sections  147,  447/149,

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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 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 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 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 about  

the incident, and pleaded that the evidence adduced against

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them, is false.  However, no evidence in defence appears to  

have been given.

8. After hearing the parties,  the trial  court came to the  

conclusion that accused Bivash Chandra Debnath @ Patal,  

Sambhu Ghosh and Sadananda Mondal, 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 IPC 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  convicts  Bivash  

Chandra  Debnath,  Sambhu Ghosh and Sadananda Mondal  

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 by said judgment  

and order dated 5.8.1994, the three convicts challenged the

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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 taken by the trial court,  

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 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  1½”  muscle  deep  over the front of right elbow.

2) One incised wound 3” x 1½” bone deep over  the right side of head beyond right ear.

On exploring the wound, the temporal bone  was found cut.

3) One incised wound 2½” x ½” muscle deep  over the right side angle of jaw.

4) One incised wound 2” x 1” muscle deep over  the lateral side of right knee.

5) One  incised  wound  4”  x  1½”  muscle  deep  over the lateral side of right leg.  Bone fibula  was found cut in two pieces.

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6) One  incised  wound  6”  x  2”  over  the  right  scapula region.  Bone scapula was found cut.

7) One  incised  wound  2½”  x  1”  muscle  deep  over the left side of neck.

8) A number of  bruises over  different  parts  of  the body.”

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  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, 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  

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

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about the role of the appellants in commission of the Crime.  

PW-1  Satya  Charan  Debnath  has  narrated  the  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 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.

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  

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

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village.  There appears to be no personal enmity on the part  

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  guilty  of  the  charge  of  

offence punishable under Section 302 read with Section 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.   

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  than  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  

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  is  ample  evidence on  the  record  to

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suggest that the appellants whose role is specifically proved  

on  the  record,  were  accompanied  with  others.   Even  

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  

aid of Section 34 IPC.   

14. In  Khem Karan and others  v.  The State of  U.P.  

and another1, in paragraph 6 this Court has made following  

observations: -

“….. 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 if — as 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.”

1 (1974) 4 SCC 603

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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  alleged to have participated in an attack but the  courts  find  that  two  of  them  were  falsely  implicated, it would 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, 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.”

16. In Dahari and others v. State of Uttar Pradesh3, in  

paragraph 20, this Court has held as under: -

“20. Undoubtedly,  this  Court  has  categorically  held that 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 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  

2 (1975) 2 SCC 596 3 (2012) 10 SCC 256

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certainly  have  convicted  the  appellants,  under  Section 302 read with Section 34 IPC.”

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), in the case on hand, even after acquittal  of the two accused from all  the charges levelled  against  them,  if  there  is  any  material  that  they  were  members  of  the  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  

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 II IPC.  In this connection, attention of this  

Court  is  drawn  to  Exception  4  to  Section  300  IPC,  which  

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  

4 (2011) 5 SCC 423

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and  without  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.”

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  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 Pulicherla Nagaraju  

alias Nagaraja Reddy v. State of A.P.5, in paragraph 29,  

this Court has discussed the issue as to when the conviction  

can be converted from an offence 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  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  

5 (2006) 11 SCC 444

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fruit,  straying  of  cattle,  quarrel  of  children,  utterance of a rude word 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. 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  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 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 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 the incident occurs by chance or whether  there was any premeditation; (vii) whether there  was any prior enmity or whether the deceased was  a stranger; (viii) 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 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

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with  reference  to  individual  cases  which  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 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  Kartik  Nath,  PW-3  Panchanan  

Debnath and PW-4 Dulal Nath, and further 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,  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 Debnath @ Patal,  

Sambhu Ghosh @ Sambhu Charana Ghosh and Sadananda

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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  period  of  seven  years.   The  

period of sentence already undergone by them shall be set  

off from the sentence awarded by this Court.

…………………..…………J. [Dipak Misra]

     .………………….………..…J. [Prafulla C. Pant]

New Delhi; April 16, 2015.