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Friday, February 7, 2014

Sec.302 I.P.C r/w sec.149 I.P.C converted to Section 304 Part II read with Section 149 of the IPC. - Apex court held that 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 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. = BADAL MURMU AND ORS. …APPELLANTS Versus STATE OF WEST BENGAL …RESPONDENT = 2014 ( Feb. part ) judis.nic.in/supremecourt/filename=41201

Sec.302 I.P.C r/w sec.149 I.P.C converted to Section  304  Part  II read with Section 149 of the IPC. - Apex court held that 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 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. =

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. =

In  Sarman  &  Ors.   v.   State  of  Madhya  Pradesh[7],
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 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 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   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.
2014 ( Feb. part ) judis.nic.in/supremecourt/filename=41201
RANJANA PRAKASH DESAI, MADAN B. LOKUR


                                                                  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  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.   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.

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  Bihar[1].   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 there was no  intention  to
kill the deceased.  In this connection, counsel relied on  Molu  &  Ors.  v.
State of  Haryana[2].   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  Nadu[3]
and  Alister  Anthony  Pareira   v.   State  of   Maharashtra[4].    Counsel
submitted that the appellants persistently  assaulted  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
Punjab[5].  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 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.   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  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.

8.    In this connection, we may usefully refer  to  the  judgment  of  this
Court in  Sukhdev  Singh   v.   State  of  Punjab[6].   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  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  Pradesh[7],  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, 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 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 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   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.
                           (Ranjana Prakash Desai)


                               .…………………………..J.
                              (Madan B. Lokur)
New Delhi;
February 5, 2014.

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[1]    1994 Supp. (2) SCC 569
[2]    AIR 1976 SC 2499
[3]    (2006) 9 SCC 394
[4]    (2012) 2 SCC 648
[5]    AIR 1997 SC 393.
[6]    AIR 1992 SC 755
[7]    1993 Supp. (2) SCC 356

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