STATE OF H.P. Vs SUNIL KUMAR
Bench: RANJANA PRAKASH DESAI,MADAN B. LOKUR
Case number: Crl.A. No.-001101-001101 / 2005
Diary number: 20694 / 2004
Advocates: PRAGATI NEEKHRA Vs
DEBASIS MISRA
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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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