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                                                                       [Non- Reportable ]

    IN THE SUPREME COURT OF INDIA    CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1431 of 2013

DILIP SHAW @ SANATAN & ANR.      .…….APPELLANTS  

    VERSUS

THE STATE OF WEST BENGAL  AND ORS.                                            ……...RESPONDENTS

WITH CRIMINAL APPEAL NO. 1430 OF 2013

       J U D G M E N T

ANIRUDDHA BOSE, J.

Both  these  appeals  are  directed  against  a  judgment  of

conviction  delivered  by  a  Division  Bench  of  the  High  Court  at

Calcutta  on  5th February,  2009  finding  the  appellants  guilty  of

offences under Part-I of Section 304 read with Section 149 of the

Indian  Penal  Code  as  also  under  Section  148  thereof.   The

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appellants in the Criminal Appeal No.1431 of 2013 are Dilip Shaw

@ Sanatan and Uttam Shaw. In Criminal Appeal No. 1430/2013,

there  are  three  appellants,  Paresh Shaw @ Parash,  Gopal  Prosad

Sarkar @ Phatik and Mohd. Kayum Khan. Paresh and Gopal have

been  found  guilty,  in  addition  to  the  aforesaid  provisions  of  the

Code,  under  Section  9-B  (2)  of  the  Explosives  Act,  1884.  The

Division Bench reversed the judgment of acquittal passed on 29 th

April, 1987 by the Additional Sessions Judge, First Court, Howrah

in Sessions Trial Case No. XXI (4) of 1985. The appellants have

been sentenced to undergo rigorous imprisonment for 10 years and

pay fine of Rs. 5000/- each.  In default of payment of fine, they have

been directed to suffer further rigorous imprisonment for a period of

one  year  in  the  judgment  under appeal.  The High Court  did not

award any sentence for offences other than part I  of Section 304

read  with  Section  149  of  the  Code,  considering  award  of  said

punishment  as  the  rest  were  lesser  offences.   At  the  time  the

petitions for Special Leave to Appeal was instituted, one of the main

grounds relied upon by the petitioners in support of the appeal was

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that  the  copy  of  the  judgment  of  the  Division  Bench  was  not

available.  But the copy of the judgment of the Division Bench has

been  annexed  to  the  counter-affidavit  filed  by  the  State  marked

annexure “R-9.” The appellants had also subsequently been supplied

the  certified  copy  of  the  judgment  impugned.  Because  of  this

reason,  applications were taken out by the appellants in both the

appeals for raising additional grounds in support of the respective

criminal  appeals.  In  this  judgment,  we  have  considered  these

additional grounds. Arguments at length have been advanced before

us on behalf of the appellants on the basis of the judgment under

appeal.  

2. The origin of the case lies in an incident that took place on 25th

March, 1981, resulting in death of one Gurdev Singh and injuries to

several members of his family.  It has been recorded in the judgment

of the Division Bench that there was past enmity between the family

members  of  the  deceased  and  his  assailants.  On  behalf  of  the

appellants, it was submitted that there was no basis for referring to

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past enmity by the High Court. From the evidence of a prosecution

witness  Jagar  Singh  (P.W.8),  we  find  that  appellants  Paresh  and

Gopal were witnesses in a case in which said Jagar was an accused.

It has been stated by Jagar in his cross-examination that in the said

case,  allegation  was  that  Jagar  and  his  brother  had  assaulted

Nageswar. This fact, in our view, could lead to the inference of there

being past enmity between the respective families.

3. Prosecution version of the case is that in the morning, at about

7.30 A.M. on 25th March 1981, a boy had come to the residence of

Sarban Singh (P.W. 6) and reported that someone had come to see

him.  Sarban  then  went  out  of  his  residence  and  met  the  visitor

nearby.  That visitor happens to be one Suresh Rampuria, who was

also  a  prosecution  witness  (P.W.5).  He  was,  however,  declared

hostile. Suresh had some business relationship with a member of the

family of the deceased. While these two individuals were talking to

each  other,  around  14/15  persons  surrounded  Sarban  and  started

assaulting  him.  The  location  of  the  place  of  occurrence  was

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Belilious  Road  in  Howrah.  The  residence  of  the  family  of  the

victims is on a lane adjacent to Belilious Road, though the street

address of the victims’ residence is 326/1, Belilious Road. The area

where victims reside is known as “Vistipara”. In the Trial Court’s

judgment, the distance of the victims’ house has been recorded to be

about 40-45 ft. from the main road (i.e. Belilious Road).  On hearing

Sarban’s cries for help, his family members rushed to the location

and rescued him.  Sarban (P.W. 6) deposed that Hadis, one of the

accused  persons  tried  to  assault  him  with  a  knife,  but  on

intervention of his brother Jagar (P.W.8), he was saved as the P.W.8

snatched  away  the  knife  from  Hadis.  It  also  forms  part  of  the

complaint  of  the  victims’ family  that  Kayum had snatched away

Sarban’s wrist watch at that time.  When Sarban was returning to his

home with rest of the family members, a bomb was thrown from the

rear side which landed in front of Bimla. Said Bimla is wife of Jagar

(P.W.8) and has deposed as the P.W. No. 3 at the trial. A second

bomb  was  also  hurled  at  the  group  comprising  of  the  family

members  of  the  deceased.  That  bomb  exploded  behind  Gurdev

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Singh and caused injuries to him at that point of time. He had fallen

down.  Four other family members of Gurdev were also injured.

They were Bimla (P.W.3),  Jaswinder (P.W.4),  Sarban (P.W.6) and

Jagar (P.W.8).   On hearing the sound of explosion, one Sakaldeo

Singh (P.W.13), a head constable who was at a nearby police outpost

reached the place of occurrence with some other police personnel.

He found remnants  of  the bomb on the ground as  also drops  of

blood at the place of occurrence.  From deposition of Niranjan Dey

(P.W.22),  who  at  the  material  time  was  a  Sub-Inspector  with

Howrah  Police  Station,  it  transpires  that  communication  was

received by the police station from the said police outpost and he

had rushed to the spot with police force. He reached there at about 8

A.M.  He  found  six  persons  injured  from  bomb  explosion.  He

arranged  for  their  removal  to  Howrah  General  Hospital  and

recorded  the  statement  of  Piyara  Singh  (P.W.1).   The  First

Information Report was registered on the basis of statement given

by said Piyara Singh, a member of the same family.  An ambulance

was pressed into service by the police and the injured persons were

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taken  to  Howrah  General  Hospital  for  treatment.  Among  those

injured, Gurdev was referred to S.S.K.M. Hospital, Kolkata. Said

Gurdev succumbed to his injuries on the next day i.e. on 26th March,

1981. Another police witness, Kashiswar Majumdar (P.W.14) in his

deposition has broadly given the same version about the location,

sound of explosion and the remnants of bombs (he described them

as splinters).   

4. Gurdev’s  statement  made  to  the  Medical  Officer  of  Howrah

General Hospital, Dr. Subrata Ghosh (PW-9) was one of the factors

considered  by  the  High  Court  leading  to  conviction  of  the

appellants. The Division Bench treated the statement of Gurdev as

dying declaration.  In his deposition, the PW-9 stated that Gurdev

had  told  him  that  he  was  assaulted  by  Nageswar  Sharma  that

morning as a result of which he sustained the injuries.  Apart from

the five appellants,  the statement of Piyara Singh (P.W.1),  which

formed  the  basis  of  the  First  Information  Report,  also  named

Nageswar  Sharma,  Bhutnath,  Uttam,  Bhagat  and  Hadis  as  the

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persons  and  5  or  6  other  individuals  as  assailants  of  Sarban.

Charging of two bombs has also been attributed to them in the said

statement and as per that statement, the said explosion had caused

injury to Piyara’s brother and the said brother’s wife as well as 5 or

6  other  persons.  All  the  accused  persons  were  charged  under

Sections  148,  302/149  and  324/149  of  the  Code.   In  addition,

Paresh, Gopal and Nageswar were charged under Section 9-B (2) of

the Explosives Act, 1884. The prosecution had altogether examined

22 witnesses. Among them, PW-1, PW-2, PW-3, PW-4, PW-5, PW-

6,  PW-7  and  PW-8  were  examined  as  witnesses  of  fact.   They

deposed as eye witnesses.  PW-10 Dr. Dipen Kumar Biswas was the

autopsy surgeon.  PW-5, Suresh Kumar Rampuria, who was talking

to  Sarban  Singh  at  the  time  of  occurrence  of  the  incident  was

declared hostile.   Suresh and Tirath Dev Singh (P.W.7) who also

deposed as witnesses of fact were not family members of the victim.

In  his  examination-in-chief,  P.W.7  had  narrated  the  facts  which

broadly corroborated the prosecution version.  But the P.W.7 did not

name any of the appellants as the assailants or perpetrators of the

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crime.  He,  however,  had  identified  Nageswar  Sharma  in  Test

Identification  Parade  and  again  identified  him  in  course  of  his

deposition as the person who hurled the bomb.

5.     All the other witnesses of fact were related persons.  They had,

in their depositions narrated presence of the nine individuals at the

place of occurrence.  They have been arraigned as accused persons.

One  of  them,  Hadis  was  not  traceable.   Trial  was  conducted  in

respect  of  rest  of  the  accused.  The  depositions  of  prosecution

witnesses were more or less uniform so far as narrating the factual

basis of the prosecution case is concerned. The prosecution version

is that though three among the accused were seen with bombs, two

bombs were hurled, first by Paresh, the first appellant in Criminal

Appeal No. 1430 of 2013 and next by another accused, Nageswar

Sharma. Nageswar has since passed away. It was the bomb hurled

by Nageswar which caused injuries to Gurdev Singh, to which he

succumbed after being referred to the S.S.K.M Hospital from the

Howrah General Hospital.  It was in Howrah General Hospital, he

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had  made  statements  to  P.W.  9,  Dr.  Subrato  Ghosh,  which  were

treated  as  dying  declaration.   P.W.9  has  deposed  that  he  found

Gurdev Singh in extremely shocked stage and prognosis was grave.

Gurdev  had  made  statement  to  him  that  he  was  assaulted  by

Nageswar  Sharma  in  the  morning  “with  the  help  of  bomb”.   It

transpires  from  his  deposition  that  the  statement  of  Gurdev  as

recorded by him was not in the language in which the victim had

made the statement. This factor, however, by itself does not lower

the quality of evidence of P.W.9.  He is a neutral person and, in his

deposition, he has stuck to the statement as recorded by him. The

same witness described the injuries as one which might have had

happened from the explosion of a bomb. The autopsy surgeon, P.W.

10 in his examination-in-chief stated that the death of Gurdev was

due to  the homicidal  injuries  referred to by him.   These injuries

were ante-mortem in nature and all the injuries were the results of

bomb explosion. P.W.9 has confirmed treating other injured persons,

being Jasbindar Singh (P.W.4), Bimla Devi (P.W.3), Sarban Singh

(P.W.6) and Jagar Singh (P.W.8).

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6. The Trial Court acquitted all the accused persons on the basis of

certain discrepancies  in  the  eye-witness  accounts  of  the incident.

The Trial  Court  did not  find evidence of P.W.9 on the aspect  of

recording  dying  declaration  to  be  reliable  enough  warranting

conviction on that basis.  We have already expressed our opinion on

this aspect of the controversy. The judgment referred to the boy who

had come to the house of the victim to call Sarban. The fact that he

was not examined was held against the prosecution. The Trial Court

also disbelieved the prosecution story about  hurling of  bombs to

assault the victims on the ground that if assault to cause death was

the object of the accused persons then they would have had indulged

in assault with bombs at the first instance when Sarban was being

rescued.  Inference of the Trial Court was that there seemed to be no

reason for waiting with the bombs till return of the family members

of Sarban. There was evidence to the effect that the first bomb had

landed in front of Bimla Devi.  In the opinion of the Trial Court, in

such a situation it would have been natural that her wearing apparels

would have been ignited or borne signs of burning. There was no

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evidence that  her wearing apparels  had been damaged.  The Trial

Court disbelieved the prosecution version as to who had hurled the

bomb.   It  was observed by the Trial  Court  that  when the family

members  of  the  victim  were  returning  home,  the  bombs  were

charged from their rear side, and reasoning of the Trial Court was

that it  was not possible for them to find out who had hurled the

bomb.

7.  Before the High Court, the learned counsel for the accused did not

defend the judgment of the Trial Court on fact. It has been recorded in

the judgment of the High Court: -

                     “Mr. Bagchi, the learned Advocate appearing in support of the respondents did not  seek  to  defend  the  judgment.  He restricted his submission only as regards the degree  of  offence  and  the  punishment which  may  be  inflicted  in  this  case.  He submitted  that  it  cannot  be  said  that  the intention of the accused persons was to kill either Gurdev or any was the member of his family.  It  cannot also be said that Gurdev was the targeted victim nor can it  be said that  Sarban  was  the  targeted  victim. According to him the accused persons may have  intended  to  teach  a  lesson  to  the

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members of the complainant party but there was no intention to  kill.  The bombs were hurled may be with the knowledge that the same  might  cause  death  but  not  with  the intention to cause death because no one was not  the  targeted  victim.  He,  therefore, submitted  that  the  conviction  in  this  case can at best be under Part II of Section 304 read with Section 149 I.P.C.”

The High Court, however, on the basis of evidence negated that

defence and inter-alia, observed and held: -

         “There is evidence before us to show that there  was  a  family  feud  between  the members of the complainant party and the accused Nageswar. If the accused persons, who had  indulged  into  the  act  of  rioting, really had intended to kill someone of the family of the party of the complainant then Sarban would have been killed at the first instance. Even according to Sarban at that time  some  14/15  persons  had  surrounded him  and  began  to  assault  him  with  fists, blows,  kicks  etc.  All  the  accused  persons were  amongst  those  persons.  When  they began to assault him, he cried for help. P.W. 2 has deposed that the accused Nageswar, Gopal and Parash were armed with bombs and  Hadis  was  armed  with  a  knife.  The knife of Hadis was snatched by Jagar Singh and thrown away in the lane. Even then the bomb  was  not  charged.  The  bombs  were

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charged  only  when  the  members  of  the party  of  the  complainant  were  returning home.  The  accused  persons  at  that  stage may  have  felt  the  sting  of  defeat.  This feeling  at  that  stage  must  have  provoked them  to  throw  the  bombs  regardless  of whatever might happen.  

           We, therefore, are of the view that it is not correct to say that the case does not at all come  within  any  of  the  exceptions  of Section 300 IPC. We cannot also agree with Mr. Bagchi that the case would come within Part  II  of  Section  304  of  the  IPC.  The bombs  were  thrown  with  the  intention  to cause  such  bodily  injury  as  was  likely  to cause death.

           The accused persons are therefore convicted under Part I of Section 304 IPC read with Section  149  of  the  IPC.  They  are  also convicted  under  section  148  IPC.  Three persons,  namely,  Nageswar,  Parash  and Gopal  are  also found guilty  under section 9B(2)  of  the  Indian  Explosives  Act. However, considering the fact that we have convicted them under Section 304 Part I of the IPC read with Section 149 IPC, we are not  inclined  to  award  any  separate punishment for the rest of the offences.”

8. Admitted position is that among the appellants before us, it was

only Paresh who had hurled the bomb as per prosecution version. The

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witnesses of fact, barring P.W.No.5 and P.W.No.7, have all stated that

the  appellants  were  present  at  the  place  of  occurrence  and  were

involved in  initial  assault  of  Sarban.  PW-1, on the basis  of  whose

statement the FIR was registered, has named Dilip, Gopal and Kayum

specifically and has also stated presence of four or five others who

had assaulted  Sarban.   P.W.2 has  named Paresh,  Dilip,  Uttam and

Kayum.   P.W.6  has  specifically  named  Dilip  and  Paresh  whereas

PW.8-Jagar Singh has named Paresh and Gopal.  There is no major

discrepancy  or  contradiction  in  the  depositions  of  prosecution

witnesses.   There  are  some  variations  in  prosecution  witnesses’

version as regards total number of assailants who were present at the

place of occurrence, but it is not expected that these witnesses would

count numbers in a moment when a group of persons started assault

on Sarban.  The question which we need to address now is whether

finding of guilt against the appellant under Part I of Section 304 read

with Sections 148 and 149 of the Indian Penal Code was justified or

not. To get the appellants outside the purview of Section 149 of the

Code, reliance on their behalf has been placed on the decisions of this

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Court in the cases of Radha Mohan Singh v. State of U.P. (2006) 2

SCC 450, Sukhbir Singh v. State of Haryana (2002) 3 SCC 327

and  Bal  Mukund Sharma v.  State  of  Bihar (2019)  5  SCC 469.

These are all authorities involving cases of assault by several persons.

The Court  found in  these  decisions  that  common object  of  all  the

accused persons of the unlawful assembly to commit murder was not

established.   It  was  not  proved  that  the  members  of  the  unlawful

assembly knew that murder was likely to be committed in prosecution

of the common object of the assembly. In the case of Sukhbir Singh

(supra) it was held:-

“14. The prosecution in the instant case could not specifically refer to any of the objects for which the  accused  are  alleged  to  have  formed  the assembly.  It  appears,  from the  circumstances  of the case, that after altercation over the splashing of mud on his person and receiving two slaps on his face  from the  complainant  party,  Sukhbir  Singh declared to teach the complainant party, a lesson and went home. Immediately thereafter he along with others came on the spot and as held by the High  Court  wanted  to  remove  the  obstruction caused in the flow of water. As the common object of the assembly is  not discernible,  it  can, at  the most, be held that Sukhbir Singh intended to cause

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the  fatal  blow  to  the  deceased  and  the  other accused  accompanied  him  for  the  purpose  of removing  the  obstructions  or  at  the  most  for teaching a lesson to Lachhman and others. At no point  of  time  any  of  the  accused  persons threatened or otherwise reflected their intention to commit  the  murder  of  the  deceased.  Merely because  the  other  accused  persons  were accompanying  him  when  the  fatal  blows  were caused by Sukhbir Singh to the deceased, cannot prove  the  existence  of  the  common  object specifically in the absence of any evidence of the prosecution  in  that  behalf.  The  members  of  the unlawful  assembly  can  be  held  liable  under Section  149  IPC  if  it  is  shown  that  they  knew before  hand that  the  offence  actually  committed was likely to be committed in prosecution of the common object. It is true that the common object does  not  require  prior  concern  and  a  common meeting of mind before the attack. It can develop even on spot but the sharing of such an object by all the accused must be shown to be in existence at any time before the actual occurrence.”

9. The decisions  of  this  Court  in  the cases  of  Padam Singh v.

State of U.P. (2001) SCC 621 and Sampat Babso Kale & Ors. v.

State of Maharashtra (2019) 4 SCC 739 were relied upon in support

of the appellants’ submissions that in an appeal against acquittal the

High Court ought not to lightly interfere with the decision of the Trial

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Court, which has recorded the evidence and observed the demeanour

of witnesses. The ratio of these decisions are binding on us, but in our

opinion they are not applicable in  the facts of this  case.  The Trial

Court’s  judgment  is  largely  inferential.  So  far  as  prosecution

witnesses  are  concerned,  they  uniformly  narrated  the  sequence  of

events. There has been no major contradiction in the depositions of

the  prosecution  witnesses.  In  the  case  of  Sampat  Babso  Kale

(supra),  the victim who made the dying declaration had 98% burn

injury. There was evidence of the doctor in that case to the effect that

if  there  was  98%  burn  injury,  shock  of  the  victim  could  lead  to

delusion. In this case, the P.W.9 deposed, in his cross-examination,

that  generally  if  general  condition  of  a  patient  was  low,  he  was

extremely shocked and his blood pressure was low, with the injuries

the nature of which Gurdev had suffered, he would not be in normal

mental understanding. He however found the patient to be conscious,

but his general consciousness (G.C) to be low. He also identified the

injuries to be of such nature which may happen from explosion of a

bomb. Thus, we do not find any reason to discard the evidence of

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P.W.9.   Moreover,  what  has  been stated  as  “dying declaration”  by

deceased Gurdev stands corroborated by several other witnesses.

10. The  provisions  of  Section  304  Part  I  was  invoked  by  the

Division  Bench  mainly  on  account  of  death  of  Gurdev.  Prior  to

hurling of the two bombs at the family members of Sarban, one of

which caused injuries to Gurdev, there was assault on Sarban in which

involvement of all the accused persons have been established by the

prosecution  through  cogent  and  reliable  evidence.  But  death  of

Gurdev resulted from bomb injury at a time when the family members

of  the  deceased  were  returning  from  the  place  where  assault  on

Sarban  occurred,  close  to  their  residence.  The  distance,  however,

between the two locations was very short.

11. In our opinion, the fact that there was short time gap and little

deviation in describing the exact place of occurrence by themselves

cannot  detach  the  involvement  of  the  persons  who had hurled  the

bombs from rest of the accused persons altogether, who were part of

the same group.  They were harbouring common object,  which fact

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emerges from various factors including having assembled therewith

weapons of assault and their participation in the acts of assault. These

weapons were capable of causing death. The act of hurling bombs was

in very close proximity in time to the act of assault on Sarban.  The

two incidents  formed part  of  same chain of events  assaults  in  this

case. There was enough material to include the five appellants among

the  set  of  persons who had common object  to  assault.   In  hurling

bombs, their target appears to have had been random but directed at

members of the family of Gurdev. In that context, the High Court was

right in not speculating upon the reason as to why they had gathered

early in the morning at the place of occurrence.  They were present

there  with  lethal  weapons  which  obviously  reflected  their  motive.

This was followed by assault on various members of the Singh family,

which  resulted  in  death  of  Gurdev  and  caused  injuries  on  several

others.  The  Trial  Court’s  reasonings  were  fallacious  and  the  High

Court had rightly interfered in appeal. The ratio of the decisions in the

cases of Padam Singh (supra) and Sampat Babso Kale (supra) do

not aid the appellants.

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12. We are  also of  the opinion that  there  was common object  to

assault.  We have already dealt with the aspect of common object in

commission of the offences. In the context of evidence available in

this  case,  the  ratio  of  the  judgments  of  this  Court  in  the  cases  of

Radha  Mohan  Singh  (supra),  Sukhbir  Singh  (Supra)  and  Bal

Mukund Sharma (supra)  have no application.   The evidences  of

prosecution witnesses of fact, who were eye witnesses, is uniform to

the effect that all the appellants had participated in acts of assault of

Sarban initially and subsequently other members of his family.  

13. From the manner in which assault took place, we, however, are

of the opinion that no intention could be attributed to the appellants to

cause death of Gurdev.  The bombs were charged from the rear of the

group comprising of members of the Singh family but these were not

targeted at anyone specific. The assaults were random, barring that on

Sarban at  the initial  stage.  We do not  think in  the given facts  the

appellants could be held guilty of Part I of Section 304 of the Code

read with Section 149 thereof. We accordingly modify the conviction

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imposed on the appellants to Part II of Section 304 of the Code read

with  Section  149  thereof.   We  also  modify  the  sentence  of  the

appellants and direct them to undergo rigorous imprisonment for five

years each under Part II of Section 304 read with Section 149 of the

Code.   We  however  enhance  the  quantum  of  fine  to  Rs.50,000/-

(Rupees  Fifty  Thousand)  in  respect  of  each of  the  appellants.  The

amount of fine shall be paid to the legal representatives of deceased

Gurdev Singh as compensation. We also reduce the term of default

punishment to six months’ rigorous imprisonment instead of one year

the High Court directed the appellants or any one of them to undergo

if they do not make payment of fine. While modifying the term of

imprisonment,  we  have  taken  into  consideration  the  fact  that  the

offences were committed about four decades back and the appellants

at present are of advanced age.  We find no reason to interfere with

the finding of guilt by the High Court under Section 148 of the Code

in respect of all the appellants and in so far as appellant Nos.1 and 2

in Criminal Appeal No.1430/2013 are concerned, under Section 9B

(2) of the Explosives Act 1884.  We approve the reasons given by the

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High  Court  for  not  awarding  separate  punishments  to  the  said

appellants  under  the  two  aforesaid  provisions  for  commission  of

offences under those sections.

14.     The appeals are partly allowed in the above terms. Bail bonds

of the appellants shall stand cancelled and the appellants are directed

to surrender before the Trial Court within six weeks. In the event of

their failure to surrender, the Trial Court shall take them into custody

so that  they serve out  the sentence as  directed.   Detention,  if  any,

already undergone by the appellants in the same case will be adjusted

while computing the period of sentence.

        …..………………………….J.        (Deepak Gupta)

……………..……………….J.        (Aniruddha Bose)

    New Delhi,      Dated: March 02, 2020.