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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 82 OF 2015 (Arising out of SLP (Crl.) No. 9447/2012)

DILIP KUMAR MONDAL & ANR.             .. Appellants

Versus

STATE OF WEST BENGAL    .. Respondent

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This appeal arises out of the judgment of the Calcutta  

High Court dated 13.2.2012 passed in C.R.A. No.747/2008, in and  

by  which,  the  High  Court  confirmed  the  conviction  of  the  

appellants  under  Section  302/34  IPC  and  the  sentence  of  life  

imprisonment imposed upon them and set aside the conviction of  

the appellants under Section 326 IPC.

3. Briefly  stated  case  of  the  prosecution  is  as  under:-  

Complainant – PW 3 –Fatik Chandra Debnath  is the brother of the

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deceased Nripen Debnath.   On 22.11.1998 at about 10.00 A.M.  

the complainant along with his two sons namely, PW-11 Ranjit  

Debnath  and   PW-12  Santosh  Debnath  was  doing  agricultural  

work  in his field–collecting harvested paddy crops and tying the  

same.   Deceased  Nripen Debnath, brother of the complainant  

and his son Nikhil Debnath (PW-10) proceeded towards the  field  

in a bullock cart for bringing  the  bundles of harvested  paddy  

crops.   The only way to reach their field was through the field  

belonging to the accused persons and as soon as the bullock cart  

touched the border of the field of the accused, the accused took  

exception  to  the  same,  which  resulted  in  a  wordy  altercation  

between the parties and injuries were inflicted by the appellants  

on  the  deceased  and  witnesses.   Appellant  Dinesh  inflicted  

injuries in the abdomen of Nripen Debnath with the pasli and the  

appellant Dilip attacked him with a dau.   The other two accused  

also assaulted the deceased.  When Nikhil Debnath (PW-10) tried  

to rescue his father, he was also badly  beaten  by the accused.  

On seeing the incident, PW-3 –Fatik Chandra Debnath rushed to  

the place of incident and raised alarm.   In the process, PW 11–

Ranjit  Debnath  and  PW-12–Santosh  Debnath  also  sustained  

injuries.   On hearing hues and cries, the villagers gathered at the  

place and the accused fled away.

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4. All the four injured persons were immediately taken to  

Godhanpara Hospital wherein PW-10–Nikhil Debnath and PW-11  

–Ranjit Debnath were discharged after  first aid.   As the condition  

of Nripen Debnath and PW-12 Santosh Debnath was precarious,  

they  were  referred  to  N.G.  Hospital,  Berhampore.   Nripen  

Debnath succumbed to the injuries on his way to the hospital.

5. Law was set in motion by PW-3 Fatik Chandra Debnath  

by  lodging  a  complaint  at  Police  Station  Raninagar,  District  

Murshidabad.    On  the  basis  of  the  complaint,  a  case  was  

registered under Section 302/34 IPC and 326/34 IPC against the  

accused  persons.   PW-14  Dr.  Gobinda  Banerjee   conducted  

autopsy on the body of  Nripen Debnath and  PW-14 opined that  

the death was  due to shock and haemorrhage and issued Ex P6-

Post mortem certificate.  After completion of due investigation,  

chargesheet  was  filed  against  the  appellants  and  two  other  

accused   under  the  above  stated  provisions.   To  prove  the  

charges  against  the  accused,  prosecution  has  examined  16  

witnesses and exhibited  a number of documents and material  

objects.  The accused were questioned under Section 313 Cr.P.C.  

about the incriminating evidence and the circumstances but the  

accused denied all of them and pleaded innocence.  The accused  

have  stated  that  they  have  been  falsely  implicated  due  to

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political  rivalry  and  they have been victimized .

6. Upon consideration of oral and documentary  evidence,  

the  Sessions  Court  convicted  the  appellants  under  Sections  

302/34  IPC  and  326/34  IPC   and  sentenced  them to  undergo  

imprisonment  for life and to pay a fine of Rs.2000/- with default  

clause.  For the offence under Section 326 IPC, the accused were  

sentenced to undergo imprisonment for three years and to pay a  

fine of Rs.1000/- with default clause.  Accused Arjun Mondal was  

acquitted  of  all  the  charges  giving  him  the  benefit  of  doubt.  

Fourth  accused-Vipad  died  pending  trial.    Aggrieved  by  the  

conviction, the appellants preferred appeal before the High Court  

of Calcutta which by the impugned judgment has confirmed the  

conviction of the appellants under Section 302/34 IPC and the  

sentence of life imprisonment imposed on them.  Their conviction  

under  Section  326  IPC  was  set  aside.  Being  aggrieved,  the  

appellants have preferred this appeal  by special leave.

7. Assailing  the  conviction  of  the  appellants,  learned  

counsel for the appellants contended that the testimony of the  

witnesses  suffered  from  serious  contradictions  and  

inconsistencies and they could not be said to be reliable.  It was  

submitted that the appellants had been falsely implicated in the  

case  on  account  of    political  rivalry,  which  aspect  was  not

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properly considered by the courts below.

8. Contrariwise,  learned  counsel  appearing  for  the  

respondent-State  contended  that  there  is  no  material  

contradiction  in  the  testimony of  the  witnesses affecting  their  

veracity.  It was contended that the accused were already armed  

with deadly weapons with which the appellants inflicted injuries  

on the deceased and the complainant party.  It was submitted  

that after inflicting fatal injuries on the deceased, appellant Dilip  

rushed to hospital, just only to evade arrest.  It was urged that  

there is no political rivalry between the parties and courts below  

rightly negatived the defence put forth by the appellants.

9. We  have  given  our  thoughtful  consideration  to  the  

contentions urged by the counsel for the parties and perused the  

impugned judgment and the materials on record.  

10. PW-3–Fatik Chandra Debnath,  brother of the deceased,  

has deposed that at the relevant time he was busy in the field  

with his sons in collecting the harvested paddy and he witnessed  

the  incident  from  his  field  which  is  adjacent  to  the  place  of  

incident.  PW-3 stated that the appellants assaulted his brother  

Nripen Debnath in the abdomen and when his nephew Nikhil, PW-

3 rushed with his sons PW-11 Ranjit Debnath and PW-12 Santosh  

Debnath to rescue his brother, his sons PWs 11 and 12 were also

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assaulted.  PW-3 being the eye-witness, his evidence was relied  

upon as creditworthy by the courts below.

11. Evidence of  PW-3–Fatik Chandra Debnath is assailed  

contending  that  in  the  complaint  lodged  by  him,  it  is  not  

mentioned that Dilip caused hurt to Nripen Debnath with dau and  

the only fact that is mentioned  there is that  appellant Dinesh  

chopped  the stomach of the deceased  and other accused also  

joined in the assault.  Additionally, it was submitted   that PW-3  

had rushed to the place of occurrence only after the fight had  

started, so there arose doubt as to the veracity of PW-3.  Insofar  

as  the  contention  that  the  details  of  attack  with  dau are  not  

mentioned  in  the  complaint,  by  and  large,  people  cannot  be  

expected to have a photographic memory of the incident to recall  

the  minute  details  of  the  incident.   Immediately  after  the  

incident,  PW-3  must  have  been  under  shock  and  in  such  

disturbed mental condition, while he was narrating the incident  

to Pradhan of village to reduce the complaint into writing,  PW-3  

might have omitted to mention that Dilip caused hurt to Nripen  

Debnath with dau. Such omission, in our considered view,  does  

not  affect the credibility of evidence of PW-3.  Insofar as  the  

plea  that  PW-3  could  not  have  witnessed  the  assault  as  he  

reached the scene after the fight started  is not sustainable for

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the  reason  that  the  place  of  occurrence  is  just  adjacent  land  

within  a  short  distance.   Obviously,  even from his  field,  PW-3  

must have seen the attack before he rushed to the rescue of his  

brother Nripen Debnath.   

12. PW-10 Nikhil Debnath son of deceased Nripen Debnath  

has  also  sustained  injuries  while  he  was  trying  to  rescue  his  

father and PW-10 had spoken about the incident.  PW-10 Nikhil  

Debnath  deposed that on 22.11.1998 at about 10.00 A.M. while  

he was proceeding with his father on a bullock cart towards the  

field where his uncle PW-3–Fatik Chandra Debnath was collecting  

harvested paddy crops, the accused persons who were in their  

landed property  shouted that  no one could  enter the landed  

property  and immediately  after  their  entering  the  land of  the  

accused, the appellants attacked his father and inflicted injuries  

on him and  when PW-10  tried to rescue his father, they also  

assaulted  him.    PW-11  –Ranjit  Debnath   son  of  PW-3  –Fatik  

Chandra Debnath  who also sustained injuries had deposed that  

the accused threatened the deceased as  soon as  bullock cart  

entered  the  land  of  the  accused  saying  “saladarka  aj  sosana  

pathabo” which  means  “we  will  send  the  rascals  to  the  

crematory”.   PW-11 further stated that Nripen Debnath came  

down from the bullock cart, appellant-Dinesh caused injuries with

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henso and Dilip attacked him with a dau and when PW-11–Ranjit  

Debnath  and  PW-12–Santosh  Debnath  tried  to  intervene,  the  

accused (Arjun and Bipad) attacked them with a lathi.   Evidence  

of PW-11 amply corroborates the evidence of PWs 3 and 10.

13. Evidence  of  injured  witnesses  PWs  10  and  11  lends  

credence  to  their  testimony  and  their  evidence  is  entitled  to  

great  weight.   Very  much  convincing  ground  is  essential  to  

discard the evidence of the injured witnesses PWs 10 and 11.  

Despite  searching  cross-examination,   nothing  substantial  was  

elicited from PWs 10 and 11 to discredit their evidence.  

14. PW-6  Anil  Kumar  Mondal  who was  doing  agricultural  

work  in his field had also stated that he had  heard one jhamela  

and when he went  to the place of incident,  a  maramari took  

place.   PW-6 had spoken about the overt  act   of  each of  the  

appellants  and causing  injuries  to the deceased and others.  

PW-8 Mastoram Debnath  labourer who was working in the field  

of the deceased at that time had also deposed that an altercation  

crept up  between the  parties.

15. As  far  as   evidence  of  PW-2–Abul  Kasim  Sk   is  

concerned,  the  courts  below   have  rightly   recorded  him  

unworthy of credit as he  stated that Nripen Debnath was lying  

dead on a village  road.  As pointed out by the courts below,  it  

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appears  that  PW-2  has  just  deposed  whatever  he  heard  from  

others.   PW-4  –Intajul  Haque,  an  agricultural  labourer  had  

deposed  the  incident   and  the  overt  act  of  the  appellants  in  

causing  hurt   to Nripen  and  that  while  PW-10     –Nikhil   

Debnath attempted to   save his father,   Dilip caused hurt to  

Nikhil with dau   and that  all the accused attacked  sons of PW-3  

Fatik Chandra Debnath with bamboo split.  During investigation,  

statement of PW-4 was not recorded by the investigating officer  

under Section 161 Cr.P.C. and the High Court rightly declined to  

take notice of the evidence of PW-4.  Likewise, High Court has  

also rightly rejected the testimony of PW-5 Karuna Krishna Sarkar  

who had stated that  he saw the accused running through his  

house and that he witnessed the incident from his garden.  

16. The contradiction pointed out in the evidence of  the  

witnesses  and the discrepancies  in  the  prosecution  case  were  

duly  considered  by  the  courts  below.   The  contradictions  so  

pointed  out  by  the  appellants  do  not  create  infirmity  in  the  

prosecution case.  The core of the prosecution story remains the  

same that  Nripen  Debnath  and his  son  PW-10 Nikhil  Debnath  

along with two sons (Ranjit  Debnath and Santosh Debnath) of  

PW-3 Fatik Chandra Debnath  were assaulted by the accused on  

their landed property.   The defence plea that the false case has

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been  foisted  on  the  accused  due  to  political  rivalry  is  not  

substantiated by the appellants.

17. On  the  evidence  of  PW-3–Fatik  Chandra  Debnath,  

injured witnesses PWs-10 to 12 – Nikhil Debnath, Ranjit Debnath  

and   Santosh Debnath and other witnesses PWs 6 and 8, the  

courts below have recorded concurrent findings of fact that the  

appellants have inflicted fatal  injuries on the deceased Nripen  

Debnath  and  the  concurrent   findings  so  recorded  are  

unassailable.   

18. Having agreed with  the findings of  the courts  below  

that  the  appellants  inflicted  fatal  injuries  on  the  body  of  the  

deceased, it is to be ascertained whether or not  it was a result of  

pre-meditation  and  whether  the  conviction  of   the  appellants  

under Section 302 IPC is sustainable.   So far as this question is  

concerned,  facts  and  circumstances  of  the  case  and  the  

statement  of the witnesses are to be  examined.  As pointed out  

earlier, the accused persons were objecting to the entry of the  

bullock  cart  in  their  field  and  before  the  attack,  there  was  a  

wordy altercation.  PW-6 Anil Kumar Mondal  had also deposed  

that  he  heard  jhamela  and  when  he  rushed  to  the  place  of  

offence, he noticed  a maramari  took place  and the appellants  

inflicted injuries on Nripen  and PW-10  Nikhil Debnath.  PW-10

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son of deceased himself  deposed  that accused persons were  

guarding their landed property so that  no one  enters their land  

and as he along with his father  Nripen entered their land in their  

bullock cart, the accused persons restrained  them saying  “sala  

toder gari jete debo na”.  PW-11–Ranjit Debnath, another injured  

witness had also spoken that there was fight between the parties.  

19. The High Court had referred to the evidence and the  

defence  put  forth  by  the  appellants  that  the  incident  was  a  

sudden fight between the parties.  The High Court  declined to  

invoke Exception 4  to Section 300 on the grounds that:- (i) the  

defence plea  of  sudden fight  was not clearly put forth by the  

accused during their questioning under Section 313 Cr.P.C.; (ii)  

even assuming  that there was a sudden fight,   and that four  

accused persons  were injured, there is nothing to suggest that  

the complainant  party were the aggressors,  the injuries must  

have  been  inflicted   on  the  accused  only  to  prevent  the  

complainant party  from entering  the field  of the complainant  

party and in self defence.

20. Learned counsel for the appellants contended that the  

defence  emerging from the evidence is that the appellants have  

been  objecting to the user  of  any part  of  their  field for  the  

purpose of  ingress and egress of the bullock cart  and inspite

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thereof  the complainant party armed  with deadly weapons tried  

to pass their bullock cart  through their field as a result  whereof,  

a  free fight   ensued  in  which  the appellants  and two other  

accused persons  sustained injuries  and while so the High Court  

failed to appreciate  that there was no  premeditation and the  

entire  incident  was due to  a sudden fight and the High Court  

ought to have invoked  Exception 4 to Section 300 IPC.

21. Exception 4 to Section 300 IPC 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 the  offender having taken undue advantage or acted in a cruel  or unusual manner.”

In order to invoke the applicability of Exception 4 to Section 300  

IPC, the following conditions are to be satisfied namely:

(i) that  the  incident  happened  without  premeditation;  

(ii) in a sudden fight;  (iii) in the heat of passion;  (iv) upon a sudden quarrel and (v) without  the  offender  having  taken  undue  

advantage  or  acted  in  a  cruel  or  unusual  manner.”    

22. This Court in Sridhar Bhuyan vs.  State of Orissa (2004)  

11 SCC 395,  reaffirmed the same and held as under:-

“For bringing in operation of Exception 4 to Section 300  IPC, it has to be established that the act was committed  without  premeditation,  in  a  sudden  fight  in  the heat  of  passion  upon  a  sudden  quarrel  without  the  offender  having taken undue advantage and not having acted in a  cruel or unusual manner.

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The fourth exception of Section 300 IPC covers acts done  in a sudden fight. The said exception deals with a case of  prosecution not covered by the first exception, after which  its  place  would  have  been  more  appropriate.  The  exception is founded upon the same principle, for in both  there is absence of premeditation. But, while in the case  of  Exception 1 there is total deprivation of self-control, in  case  of  Exception  4,  there  is  only  that  heat  of  passion  which clouds men’s sober reason and urges them to deeds  which they would not otherwise do. There is provocation in  Exception 4 as in Exception 1; but the injury done is not  the  direct  consequence  of  that  provocation.  In  fact  Exception  4  deals  with  cases  in  which  notwithstanding  that a blow may have been struck, or some provocation  given in the origin of the dispute or in whatever way the  quarrel may have originated, yet the subsequent conduct  of both parties puts them in respect of guilt upon equal  footing. A “sudden fight” implies mutual provocation and  blows  on  each  side.  The  homicide  committed  is  then  clearly not traceable to unilateral provocation, nor in such  cases could the whole blame be placed on one side. For if  it  were  so,  the  exception  more  appropriately  applicable  would be Exception 1. There is no previous deliberation or  determination to fight.  A fight suddenly takes place,  for  which both parties are more or less to be blamed. It may  be that  one of  them starts  it,  but  if  the other  had not  aggravated it by his own conduct it would not have taken  the serious turn it did. There is then mutual provocation  and aggravation, and it is difficult to apportion the share  of  blame  which  attaches  to  each  fighter.  The  help  of  Exception 4 can be invoked if death is caused: (a) without  premeditation;  (b)  in  a  sudden  fight;  (c)  without  the  offender’s  having taken undue advantage or  acted in  a  cruel or unusual manner; and (d) the fight must have been  with the person killed. To bring a case within Exception 4  all the ingredients mentioned in it must be found. It is to  be  noted  that  the  “fight”  occurring  in  Exception  4  to  Section 300 IPC is not defined in IPC. It takes two to make  a fight.  Heat of  passion requires that there must be no  time for the passions to cool down and in this case, the  parties have worked themselves into a fury on account of  the verbal altercation in the beginning. A fight is a combat  between two and more persons whether with or without  weapons. It is not possible to enunciate any general rule  as to what shall be deemed to be a sudden quarrel. It is a  question of fact and whether a quarrel is sudden or not  must necessarily depend upon the proved facts of each  case. For the application of Exception 4, it is not sufficient  to show that there was a sudden quarrel and there was no

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premeditation. It must further be shown that the offender  has  not  taken  undue  advantage  or  acted  in  a  cruel  or  unusual  manner.  The  expression  “undue  advantage”  as  used in the provision means “unfair advantage”.

23. Considering the totality of the facts and circumstances  

of the case, we are unable to agree with the view taken by the  

courts  below  that  the  incident  was  a  premeditated  one.   As  

discussed earlier, the accused had been objecting to the ingress  

and egress of the bullock cart in their field and no sooner did the  

deceased  try  to  enter  their  field,  than  a  free  fight  ensued  

between  the  parties.   Insofar  as  the  contention  of  the  

prosecution, that the accused  were already armed with  deadly  

weapons  to  pounce upon the  deceased-complainant  party,   it  

appears  to  be   not  acceptable  as  the   accused  party  were  

proceeding to their fields for carrying out their agricultural  work  

and, therefore,  it is quite  normal  for them  to  possess such  

agricultural instruments which are used as  weapons in  this case.  

Upon  consideration  of  the  entire  evidence  and  the  facts  and  

circumstances  of  the  case,  in  our  view,  there  was   no  

premeditation on the part of the appellants and the incident  was  

a sudden  fight.  

24. In order to invoke Exception 4 to Section 300 IPC,  it  

must be further shown that the offender has not taken undue

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advantage or acted in a cruel or unusual manner.  The appellants  

are said to have inflicted injuries with  henso  and  dau.    By a  

perusal  of  Ext.  P6  post-mortem certificate,  it  is  seen that  the  

deceased sustained one incised injury on the back   which has  

caused  injury  to  scapula  and  spinal  cord  and  another  incised  

wound over the back just below the right scapula causing injury  

to the right   lung and pleura.   Insofar as the injuries caused to  

Ranjit  Debnath  and  Santosh  Debnath,  there  is  no  sufficient  

evidence as to the alleged injuries caused to them.  As far as PW-

10–Nikhil  Debnath is  concerned,   he was discharged from the  

hospital  after  giving first  aid treatment indicating thereby that  

the injury was not grievous.  Considering the injuries, in our view,  

it cannot be said that the accused have taken undue advantage  

of the situation.  The   incident was not premeditated  and the  

scuffle between the parties led to the causing of injuries to the  

deceased Nripen Debnath and considering the circumstances of  

the case, in our view, the offence would fall under Section 300  

IPC  Exception  4 and the  conviction of  the appellants  is  to  be  

modified and altered under Section 304   Part I IPC.   

25. In  the  result,  the  conviction  of  the  appellants  under  

Section 302/34 IPC is altered to one under Section 304 Part I IPC  

and the appellants are sentenced to undergo imprisonment for a

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period of ten years.   The appeal  stands allowed to the above  

extent.

……………………………J. (T.S. Thakur)  

……………………………J. (R. Banumathi)

New Delhi; January 14, 2015            

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ITEM NO.1A-For Judgment    COURT NO.11               SECTION IIB

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Crl. A.NO....../2015 arising from SLP (Crl.) No(s).  9447/2012

(Arising  out  of  impugned  final  judgment  and  order  dated  13/02/2012  in  CRA  No.  747/2008  passed  by  the  High  Court  Of  Calcutta)

DILIP KUMAR MONDAL & ANR                           Petitioner(s)

                               VERSUS

STATE OF WEST BENGAL                               Respondent(s)

Date : 14/01/2015 This petition was called on for pronouncement  of JUDGMENT today.

For Petitioner(s)                      Mr. Mithilesh Kumar Singh,Adv.                       For Respondent(s)                      Mr. Anip Sachthey,Adv.                       

Hon'ble  Mrs.  Justice  R.  Banumathi  pronounced  the  

judgment of the Bench comprising Hon'ble Mr. Justice T.S.  

Thakur and Hon'ble Mrs. Justice R. Banumathi.

Leave granted.

The appeal is allowed in terms of the signed order.

   (VINOD KR. JHA)      (RENU DIWAN) COURT MASTER COURT MASTER

(Signed Reportable judgment is placed on the file)