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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

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(“deceased-Jhore  Soren”).   The  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  

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day’s incident.  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  1 1994 Supp. (2) SCC 569

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indicates that 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  5 AIR 1997 SC 393.

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events that 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  

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the  appellants.   Their  evidence  has  a  ring  of  truth.   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  

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beat him with lathis.  If they wanted to kill him, they would  

have  used  some  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  

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omnibus  statement  that  the  appellants  assaulted  the  

deceased with lathis.   

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  6 AIR 1992 SC 755

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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  

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  

7 1993 Supp. (2) SCC 356

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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, 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  

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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 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  

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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 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  

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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 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  

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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. (Ranjana Prakash  

Desai)

.…………………………..J. (Madan B. Lokur)

New Delhi; February 5, 2014.

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