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 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 1502 OF 2004

BADAL MURMU AND ORS.       …APPELLANTS

Versus

STATE OF WEST BENGAL       …RESPONDENT

JUDGMENT

(SMT.) RANJANA PRAKASH DESAI, J.

1.  There are eleven appellants. All of them were tried by the

Additional Sessions Judge, Burdwan for offences punishable

under Section 148 and Section 302 read with Section 149 of

the IPC. They were convicted for  offences punishable  under

Section 148 and Section 302 read with Section 149 of the IPC

and sentenced to undergo imprisonment for  life  for  causing

death  of  one  Jhore  Soren  (“deceased-Jhore  Soren”).   The

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appellants’ appeal was dismissed by the High Court. Hence,

the present appeal.  

2. The prosecution story could be shortly stated:

The appellants and the prosecution witnesses belong to

Santhal Community of village Mobarakpur.  In March, 1989,

deceased-Jhore  Soren killed  the  hen of  one  Bhagbat.   This

created a furore in Santhal community.  A Salish was called

and the deceased was asked to give one hen and two handies

of country liquor to Bhagbat as a penalty by the Salishman.

Deceased-Jhore Soren complied with Salishman’s order.  On

14/4/1989,  when  deceased-Jhore  Soren  and  PW-7  Kanka

were  discussing  the  same  incident,  appellant-Bhagbat

overheard  it  and  showed  his  displeasure  to  PW-7  Kanka.

When PW-7 Kanka protested, the appellants Bhagbat, Ragai

and Sambhu caused bleeding injuries to him.  PW-7 Kanka

went to a doctor and got himself examined.  On the next day,

in the morning, deceased-Jhore Soren and PW-7 Kanka were

called to the courtyard of one Saheb Hasda on the pretext that

a  meeting  was  to  be  held  over  the  previous day’s  incident.

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When  deceased-Jhore  Soren  and  PW-7  Kanka  came  to  the

courtyard of Saheb Hasda, they were tied with a rope against

one  bamboo  pole  and  one  Kul  tree  respectively  by  the

appellants.   The appellants  were armed with lathis,  tangies

(sharp  cutting  weapons)  etc.   They  started  assaulting

deceased-Jhore  Soren  and  PW-7  Kanka  with  lathis.   PW-7

Kanka managed to escape.  The appellants continued to beat

deceased Jhore Soren.  He was beaten to death.  Two wives of

deceased-Jhore Soren, who had followed him to the courtyard

of  Saheb  Hasda,  saw  the  incident.   The  women  who  had

assembled there also assaulted the wives, mother and sister of

deceased-Jhore  Soren.  PW-1  Nilmoni,  the  first  wife  of

deceased-Jhore  Soren rushed to  Memari  Police  Station  and

gave  her  statement.   In  her  statement,  she  named  all  the

appellants  as  persons,  who  assaulted  her  husband  –

deceased-Jhore  Soren  with  lathis.   On  the  basis  of  her

statement, investigation was started and upon completion of

the  investigation,  the  appellants  came  to  be  charged  as

aforesaid.  

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3. The prosecution examined 10 witnesses.   The accused

denied the prosecution case.  Prosecution case found favour

with  the  trial  court  which  convicted  and  sentenced  the

appellants as aforesaid.  Their conviction and sentence was

confirmed by the High Court.  

4. Ms.  Makhija,  learned  amicus,  who  on  our  request  is

appearing for the appellants, submitted that the prosecution

has  failed  to  prove  its  case  beyond  reasonable  doubt  and,

therefore,  the  appellants  deserve  to  be  acquitted.   She

submitted  that,  in  any  case,  if  this  Court  comes  to  a

conclusion that the appellants are guilty, then it should hold

them guilty  of  culpable  homicide  not  amounting  to  murder

because there was no intention to kill the deceased.  Counsel

submitted  that  the  appellants  have  admittedly  used  lathis

and,  therefore,  Section  304  Part  II  of  the  IPC  is  clearly

attracted to this case.  In this connection, counsel relied on

Kirti Mahto & Ors.  v.  State of Bihar1.  Counsel submitted

that  the injuries are not  on the vital  part  of  the deceased’s

body.  They are superficial in nature.  This also indicates that 1 1994 Supp. (2) SCC 569

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there was no intention to kill the deceased.  In this connection,

counsel  relied  on  Molu  &  Ors.  v.  State  of  Haryana2.

Counsel submitted that the appellants are poor tribals; they

are in jail for a considerably long time and, hence, they may be

sentenced  to  the  period  already  undergone  by  resorting  to

Section 304 Part II of the IPC.  

5. Mr. Anip Sachthey, learned counsel for the State, on the

other hand, submitted that the ocular evidence establishes the

prosecution case.  Counsel submitted that it is true that the

appellants used lathis but even if the common object was to

inflict  injuries,  the  appellants  who  were  members  of  the

unlawful  assembly  knew  that  the  murder  was  likely  to  be

committed in prosecution of common object and since death

was caused, every member of the unlawful assembly must be

held guilty of murder.  In support of this submissions, counsel

relied on  Munivel  v.  State of Tamil Nadu3  and  Alister

Anthony  Pareira   v.   State  of  Maharashtra4.   Counsel

submitted  that  the  appellants  persistently  assaulted

2 AIR 1976 SC 2499 3 (2006) 9 SCC 394 4 (2012) 2 SCC 648

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deceased-Jhore  Soren  and  caused  grievous  injuries  to  him

which resulted in his death.  The intention to commit murder

is  clear  and,  hence,  they  are  guilty  of  murder.   In  this

connection, he relied on Kashmiri Lal & Ors.  v.  State of

Punjab5.  Counsel submitted that the appeal be dismissed.

6. PW-1  Nilmoni,  the  first  wife  of  deceased-Jhore  Soren

narrated  the  entire  incident  after  describing  the  previous

incident about the stealing of the hen by her husband and the

penalty  imposed  by  the  Salishman.   She  stated  how  PW-7

Kanka was tied to a Kull tree and beaten up; how PW-7 Kanka

fled away and how deceased-Jhore Soren was beaten to death

by using lathis by the appellants after tying him to a bamboo

pole.  She did not, however, describe the exact role of each of

the appellants.  She did not state who assaulted where.  PW-3

Rabi  Soren  is  the  sister  of  deceased-Jhore  Soren.   Her

evidence is on similar lines.  PW-6 Sumi Soren, the second

wife of deceased-Jhore Soren also corroborated PW-1 Nilmoni

so far as the assault on deceased-Jhore Soren is concerned.

PW-7 Kanka,  the  injured witness  described the  events  that 5 AIR 1997 SC 393.

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preceded the incident and stated how he and deceased-Jhore

Soren were tied to  trees;  how appellants  –  Badal,  Sambhu,

Ragai, Bhagbat and Phangu assaulted deceased-Jhore Soren

with  lathis;  how appellant  Sombha was  guarding  the  place

with a tangi and how the other appellants encouraged them.

He stated that he somehow managed to escape and got himself

examined by the doctor.   His evidence indicates that out of

fear  he  ran  away  and  did  not  inform  anyone  about  the

incident.  PW-9 Dr. Prodip Kumar, who did the post-mortem of

deceased-Jhore Soren stated that the death was caused due to

the injuries described by him and that the injuries could be

caused by  a  blunt  object  like  lathi.   The evidence  of  PW-1

Nilmoni, PW-3 Rabi Soren, PW-6 Sumi Soren and PW-7 Kanka

is truthful and has rightly been relied upon.  They are rustic

witnesses  and have  candidly  stated all  that  they had seen.

Pertinently, PW-7 Kanka did not hesitate to name his brother

as one of the assailants.  No doubt, these witnesses are related

to  deceased-Jhore  Soren,  but  the  tenor  of  their  evidence  is

such  that  it  is  not  possible  to  say  that  they  have  falsely

involved the appellants.  Their evidence has a ring of truth.

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The  prosecution  has,  therefore,  proved  that  the  appellants

assaulted deceased-Jhore Soren with lathis which resulted in

his death.  

7. Now the question is which offence was committed by the

appellants.   The cause of  this  entire  episode is  very trivial.

Appellant-Bhagbat’s hen was stolen by deceased-Jhore Soren.

This  dispute  was  settled.   Penalty  was  paid.   Yet,  the

appellants  called  deceased-Jhore  Soren  to  Saheb  Hasda’s

courtyard.   Deceased-Jhore  Soren  went  there  with  PW-7

Kanka.   They  were  tied  to  the  trees  and  beaten  up.   It  is

argued  that  these  facts  show  that  the  appellants  shared

common  object  to  kill  deceased-Jhore  Soren  and  in

prosecution of the common object, they killed deceased-Jhore

Soren.   In our opinion,  the attendant circumstances do not

indicate that the appellants shared any common object to kill

deceased-Jhore Soren.  It appears that they were not happy

with the penalty imposed by the Salishman.  Therefore, they

called  him  to  Saheb  Hasda’s  courtyard  and  beat  him  with

lathis.  If they wanted to kill him, they would have used some

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sharp cutting weapons.  In fact, the evidence on record shows

that some of the appellants had tangies in their hand.  PW-1

Nilmoni stated that some of them had tangies but they did not

use  them.   Really,  if  the  appellants  wanted  to  kill

deceased-Jhore Soren, the easiest way to achieve their object

would  have  been  to  use  the  tangies  and  assault  him.   It

appears  to  us  that  what  started  as  an  exercise  to  teach  a

lesson to  deceased-Jhore  Soren by beating  him with lathis,

took an ugly turn.   In a frenzy lathi  blows were dealt  with

force.  It is true that the doctor noticed fourteen injuries on

the deceased.  Most of them were bruises and abrasions.  It is

true that  there were also two rib fractures and haemotoma

under the scalp.  But the doctor has stated that all the injuries

led to the death of deceased-Jhore Soren.  It is not, therefore,

known as to which is the fatal injury. Moreover, none of the

eye-witnesses  have  stated  who  caused  which  injury.   No

individual  role  is  ascribed  to  any  of  the  appellants.   The

eye-witnesses  have  made  an  omnibus  statement  that  the

appellants assaulted the deceased with lathis.   

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8. In this connection, we may usefully refer to the judgment

of this Court in Sukhdev Singh  v.  State of Punjab6.  In that

case, the appellant therein was convicted under Section 302 of

the  IPC and sentenced  to  life  imprisonment.   The question

arose as to what was the nature of the offence committed by

him.   He had given one blow to the deceased.  Thereafter, the

deceased  had  fallen  down.   That  blow,  according  to  the

prosecution,  was  sufficient  to  cause  death  in  the  ordinary

course of nature.  This Court accepted the testimony of PW-3,

PW-4 and PW-5 as to the participation of the appellant therein

in the  crime.   But,  it  rejected their  evidence giving  specific

overt  act  to  each  of  the  accused  because  according  to  the

prosecution,  the  victim  was  surrounded  by  all  the  four

accused, each one was armed with weapons and they attacked

the deceased simultaneously.  This Court observed that it was

therefore difficult to say that fatal injury was caused by the

appellant therein.  This Court observed that the evidence of

the witnesses on that aspect has to be considered with a pinch

of  salt.   Under  the  circumstances,  the  sentence  of  the

6 AIR 1992 SC 755

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appellant under Section 302 of the IPC was set aside and he

was sentenced under Section 304 Part II of the IPC.  In this

case  also  all  the  accused  are  stated  to  have  assaulted  the

deceased  simultaneously.   No  individual  role  is  ascribed  to

anyone.  The doctor has not stated which injury was fatal.  It

is difficult therefore to say that all the appellants are guilty of

murder.  

9. In  Sarman & Ors.   v.   State  of  Madhya Pradesh7,

there were seventeen injuries on the deceased.  The appellants

therein  were  armed  with  lathis.   They  were  charged  for

offences punishable under Sections 147 and 302 of the IPC.

Some injuries were described as incised wounds.  Injury No.15

had resulted in a depressed fracture of parietal bone. Like the

present  case,  the  doctor  in  a  general  way,  stated  that  the

cause of death was “multiple injuries”.  He specifically stated

that injury No.15 individually was sufficient to cause death of

the deceased.  It must be noted that no such assertion is made

by the doctor in this case.  The prosecution case, in general,

7 1993 Supp. (2) SCC 356

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was  that  all  of  them were  found  with  lathis.   Nobody  had

stated  which  of  them  had  caused  injury  No.15  which

unfortunately  resulted  in  the  death  of  the  deceased.   This

Court observed that in these circumstances the question that

arises was whether all  the accused were responsible for the

death of the deceased. This Court noted that if anyone of the

appellants had exceeded the common object and acted on his

own,  it  would  be  his  individual  act  but,  unfortunately,  no

witness had come forward to say which of the accused had

caused  which  injury.   This  Court  noted  that  in  those

circumstances,  it  was  difficult  to  award  punishment  under

Section 302 read with Section 149 of  the  IPC.   This  Court

noticed that although the post-mortem report stated that all

the  injuries  might  have  caused  the  death  of  the  deceased

inasmuch  as  the  accused  inflicted  injuries  with  lathis  and

particularly when they were simple, and on non-vital parts, it

cannot be said that their object was to kill the deceased.  They

may merely have knowledge that the blows given were likely to

cause death.  This Court,  in those circumstances, set aside

the  conviction  of  the  appellants  for  the  offences punishable

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under  section  302  read  with  Section  149  of  the  IPC  and

instead convicted them for offence punishable under Section

304 Part II read with Section 149 of the IPC.   

10. As  earlier  noted  by  us,  in  this  case  none  of  the  eye

witnesses  have  given specific  role  to  any  of  the  appellants.

They have not stated which appellants gave which blow and on

which  part  of  the  deceased’s  body.   They  have  not  stated

which injury was caused by which accused.  The doctor has

not stated which injury was fatal.  Undoubtedly, the deceased

had suffered two fractures and haemotoma under the scalp,

but  nobody  has  said  that  any  particular  appellant  caused

these injuries.  It bears repetition to state that though sharp

cutting weapons i.e. tangies were available, the appellants did

not use them.  In the peculiar facts of this case, therefore, it is

not possible to hold that the appellants shared common object

to murder the deceased and in prosecution of that common

object  they  caused  his  death.   It  would  not  be  possible  to

sustain their conviction for offence punishable under Section

302 read with Section 149 of the IPC.  It would be just and

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proper to resort to Section 304 Part II of the IPC and treat the

sentence already undergone by them as sentence for the said

offence.  

11. Before parting we must note certain special features of

this  case,  which  distinguish  it  from other  cases.   It  is  an

unusual case where a trivial incident led to a murder.  The

appellants as well as the material witnesses belong to Santhal

community.  They are tribals.  They come from a very poor

strata of the society and appear to be untouched by the effect

of  urbanization.   They  live  in  their  own  world.   They  are

economically  so  weak  that  possession  of  a  hen  is  very

important to them.  The deceased-Jhore  Soren stole a hen,

killed  it  and  made  a  feast  out  of  it.   This  angered  the

community  and  the  village  panchayat  penalized  deceased-

Jhore  Soren.  He  was  ordered  to  give  a  hen  to  appellant

Bhagbat and, in addition, he had to give two handies of liquor.

Though,  there  can  be  no  justification  for  the  appellants’

actions, their anger and reaction to the theft of hen must be

viewed against the background of their economic and social

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status.  Moreover, we are informed that the appellants are in

jail for almost 14 years.  Apart from the legal angle, this, in

our  view,  is  a  case  where  justice  must  be  tempered  with

mercy.   In  the  peculiar  circumstances  of  the  case,  in  our

opinion,  convicting the appellants for culpable homicide not

amounting  to  murder  and  sentencing  them  for  the  period

already undergone by them by resorting to Section 304 Part II

of the IPC will meet the ends of justice.  

12. In the circumstances, the conviction of the appellants for

offences punishable under Section 302 read with Section 149

of  the  IPC  is  quashed  and  set  aside.  Instead,  they  are

convicted for culpable homicide not amounting to murder and

the  sentence  already  undergone  by  them  is  directed  to  be

treated as sentence imposed on them under Section 304 Part

II of the IPC.  The impugned order is modified to the above

extent.   The appellants are in jail.   They are directed to be

released forthwith unless they are otherwise required in any

other case.    The appeal is disposed of.  

.…………………………..J.

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(Ranjana Prakash Desai)

.…………………………..J. (Madan B. Lokur)

New Delhi; February 5, 2014.

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