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Wednesday, July 4, 2012

conviction for the offence of culpable homicide not amounting to murder punishable under Section 304 Part I read with Section 34 IPC and sentence of rigorous imprisonment for a period of 10 years and fine?- There is no evidence to suggest any pre-meditation on the part of the appellants to assault the deceased leave alone evidence to show that assailants intended to kill the deceased. There was no previous enmity between the parties who were residents of the same locality except that there was a minor incident in which some hot words were exchanged between the deceased and Sudhir. Even on the following day i.e. on 22nd May, 2001 the incident near the drain involved the appellant-Bishnu Sarkar and the complainant- Debabrato Mazumder son of the deceased. It was only when the deceased noticed the incident and intervened to save the complainant, that Madhab Sarkar started assaulting the deceased and inflicted injuries on his body that resulted in his death. Both the Courts below have no doubt believed the prosecution case that appellant-Bishnu Sarkar was exhorting appellant-Madhab Sarkar to assault the deceased and, therefore, convicted him under Section 304 Part I with the help of Section 34 IPC. A distinction has, however, to be made in the facts and circumstances of the case between the sentence awarded to the appellant-Bishnu Sarkar who is over sixty five years old and that to be awarded to appellant-Madhab Sarkar. In the totality of the circumstances to which we have referred above, we are of the view that a rigorous sentence of three years to appellant no.1-Bishnu Sarkar and seven years to appellant no.2-Madhab Sarkar would meet the ends of justice. The sentence of fine and imprisonment in default of payment thereof will, however, remain unaltered. We accordingly allow the appeal in part and to the extent indicated above in modification of the orders passed by the Courts below.


                                                     REPORTABLE



                        IN THE SUPREME COURT OF INDIA



                       CRIMINAL APPELLATE JURISDICTION


                      CRIMINAL APPEAL NO.  876 OF 2012
                (Arising out of S.L.P (Crl.) No.546 OF 2011)


Bishnupada Sarkar & Anr.                     …Appellants

      Versus

State of West Bengal                         …Respondent



                               J U D G M E N T

T.S. THAKUR, J.

1.    Leave granted.
2.    This appeal arises out of a judgment and order dated 15th  July,  2010
passed by the High Court of judicature at Calcutta whereby  Criminal  Appeal
No.641 of 2006  filed  by  the  appellants  has  been  dismissed  and  their
conviction for the offence of culpable  homicide  not  amounting  to  murder
punishable under Section 304 Part I read with Section 34  IPC  and  sentence
of rigorous imprisonment for a period of 10 years and fine upheld.
3.    Facts giving rise to the commission of the offence by  the  appellants
and their eventual conviction have  been  set  out  in  the  judgment  under
appeal which need not be recounted again especially because notice  in  this
appeal was issued by us limited to the question of quantum  of  sentence  to
be awarded to the appellants.   Suffice  it  to  say  that  the  unfortunate
incident in which the deceased-Shyamalendu who was then  working  as  Income
Tax Inspector did no more than object to the commission of the  nuisance  in
front of his house escalated into  an  uncalled  for  assault  on  him  that
culminated in his death. The prosecution case is that on 21st May,  2001  at
about 7.00 p.m. Sudhir who was also a resident  of  the  same  locality  was
found committing nuisance in an open drain in front  of  the  house  of  the
deceased.  The deceased appears to have objected to the nuisance leading  to
a verbal altercation between the two.  On the following day at  about  11.30
a.m. the appellant Bishnu Sarkar who happens to  be  the  nephew  of  Sudhir
came to the house of the deceased and threatened him. The deceased tried  to
reason with the appellant Bishnu Sarkar that he had done  nothing  wrong  in
protesting against the nuisance.  At about 6.00 p.m. in the evening  on  the
same day Madhav Sarkar, appellant No.2  and  brother  of  Bishnu  Sarkar  is
alleged to have called PW-1 Debabrato Mazumder son of the deceased  and  the
complainant in the case to the slab near the drain and started beating  him.
The deceased who was leaving for the market  intervened  to  save  Debabrato
Mazumder.   Madhav Sarkar left  the  complainant  and  started  beating  the
deceased with fists  and  blows.   Appellant  Bishnu  Sarkar  was  allegedly
standing nearby and instigating him. The complainant  cried  for  help  that
attracted some local people who rushed to the place and  took  the  deceased
to the hospital in an injured condition where he succumbed to  the  injuries
inflicted by Madhav Sarkar-appellant no.2 with the help of a brick.
4.     The  police  filed  a  charge-sheet  against  the  appellants   after
completing the investigation for commission  of  offences  punishable  under
Section 304 read  with  Section  34  IPC.   At  the  trial  the  prosecution
examined as many as 13 witnesses  including  the  Investigating  Officer  to
prove the charge while the  defence  examined  Parvat  Kumar  Paria  besides
placing reliance on certain documents. By its order dated 30th August,  2006
the Trial Court came  to  the  conclusion  that  the  deceased  had  died  a
homicidal  death  because  of  the  injuries  inflicted  by  Madhab  Sarkar-
appellant no.2 at the exhortation of appellant no.1-Bishnu Sarkar.  Both  of
them were accordingly convicted under Section 304 Part I read  with  Section
34 IPC and sentenced to undergo rigorous imprisonment for ten years  besides
a fine of Rs.5,000/- each and in default to suffer further imprisonment  for
a period of one year. The  High  Court  by  the  order  impugned  before  us
affirmed the said conviction and sentence while dismissing the appeal  filed
by the appellants.
5.    Appearing for the appellants Mr. Ranjan Mukherjee submitted  that  the
appellant-Bishnu Sarkar had not inflicted any injury  on  the  deceased  and
that all that was alleged against him was that he exhorted  appellant  no.2-
Madhab to assault the deceased and  teach  him  a  lesson.  It  was  further
submitted that the appellant-Bishnu Sarkar is more than 65 years of age  and
had already undergone 1½ years sentence in jail. He is also  afflicted  with
various age related ailments that call for a lenient view in his case.
6.    In so far as appellant no.2 was concerned, Mr. Mukherjee  argued  that
the incident was more than 12 years old and that  a  drawn  long  trial  and
proceedings in appeal have already put  the  said  appellant  to  tremendous
financial and physical hardship.  Being  the  only  earning  member  of  the
family even appellant no.2, argued Mr. Mukherjee, deserves  a  reduction  in
the sentence especially when there was no intention  to  kill  the  deceased
and the whole incident had taken place in the heat of passion on account  of
a sudden quarrel unfortunately culminating in the demise of the deceased.
7.    Learned counsel appearing for  the  respondent,  on  the  other  hand,
argued that the nature of injuries sustained by the deceased and the  manner
in which the incident had taken place did not justify the reduction  in  the
sentence awarded to the appellants.
8.    There is no evidence to suggest any pre-meditation on the part of  the
appellants to assault  the  deceased  leave  alone  evidence  to  show  that
assailants intended to kill the  deceased.  There  was  no  previous  enmity
between the parties who were residents of  the  same  locality  except  that
there was a minor incident in which some hot words  were  exchanged  between
the deceased and Sudhir. Even on the following day i.e. on  22nd  May,  2001
the incident near the drain involved the  appellant-Bishnu  Sarkar  and  the
complainant- Debabrato Mazumder son of the deceased.  It was only  when  the
deceased noticed the incident and intervened to save the  complainant,  that
Madhab Sarkar started assaulting the deceased and inflicted injuries on  his
body that resulted in his  death.  Both  the  Courts  below  have  no  doubt
believed the prosecution case that  appellant-Bishnu  Sarkar  was  exhorting
appellant-Madhab Sarkar to assault the deceased  and,  therefore,  convicted
him under Section 304 Part I with the help of Section 34 IPC. A  distinction
has, however, to be made in the facts and circumstances of the case  between
the sentence awarded to the appellant-Bishnu Sarkar who is over  sixty  five
years old and  that  to  be  awarded  to  appellant-Madhab  Sarkar.  In  the
totality of the circumstances to which we have referred  above,  we  are  of
the view that a rigorous sentence of three years  to  appellant  no.1-Bishnu
Sarkar and seven years to appellant no.2-Madhab Sarkar would meet  the  ends
of justice.  The sentence of fine and imprisonment  in  default  of  payment
thereof will, however, remain unaltered. We accordingly allow the appeal  in
part and to the extent indicated above in modification of the orders  passed
by the Courts below.



                                                          ……………………….……..……J.
                                                               (T.S. THAKUR)





                                                          ………………………….…..……J.
                                                          (GYAN SUDHA MISRA)
New Delhi
July 2, 2012