DILIP KUMAR MONDAL Vs STATE OF WEST BENGAL
Bench: T.S. THAKUR,R. BANUMATHI
Case number: Crl.A. No.-000082-000082 / 2015
Diary number: 18693 / 2012
Advocates: MITHILESH KUMAR SINGH Vs
ANIP SACHTHEY
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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)