LexBISHNUPADA SARKAR & ANR. versus STATE OF WEST BENGAL
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A B [2012] 6 S.C.R. 230 BISHNUPADA SARKAR & ANR. v. STATE OF WEST BENGAL (Criminal Appeal No.876 of 2012) JULY 2, 2012 [T.S. THAKUR AND GYAN SUDHA MISRA, JJ.] Penal Code, 1860: s. 304 (Part I) rlw s.34 - Culpable homicide not amounting to murder - Verbal altercation C between the victim-deceased and uncle of appellants - Next cfay, appel/a,nt no. 2, brother of appellant no. 1 called the son of the deceased outside his house near the drain and started beating him - When deceased intervened, appellant no.2 started beating the deceased with fists and blows - Appel/ant D no. 1 was allegedly standing nearby and instigating him - Deceased succumbed to injuries inflicted - Trial court convicted both the appellants u/s.304 Part I rlw s.34 and sentenced to undergo rigorous imprisonment for ten years besides a fine of Rs.5000 each and in default to suffer further E imprisonment for a period of one year - High Court upheld the conviction and sentence - On appeal, held: There was no evidence to suggest any pre-meditation on the part of the appellants to assault .the deceased or to show that they intended to kill the deceased - There was no previous enmity F between the parties who were residents of the same lqcality except that there was a minor incident in which some hot words were exchanged between the deceased and uncle of appellants - Even on the following day, the incident near the drain involved appellant No. 1 and the complainant-son of the deceased - It was only when the deceased noticed the G incident and intervened to save his son that appellant no.2 started assaulting the deceased and inflicted injuries on his body that resulted in his death - Both the courts below believed the prosecution case that appellant no. 1 was H 230 BISHNUPADA SARKAR & ANR. v. STATE OF WEST 231 BENGAL exhorting appellant no. 2 to assault the deceased and, A therefore, rightly convicted him u/s.304 Part I with the help of s. 34 - A distinction has, however, to be made in the facts and circumstances of the case between the sentence awarded to the appellant no. 1 who is over sixty five years old and that to be awarded to appellant no. 2 - In the totality of the B circumstances, a rigorous sentence of three years to appellant no. 1 and seven years to appellant no. 2 meet the ends of justice - Sentence/Sentencing. The prosecution case was that one day prior to the C incident, the victim-deceased protested against the nuisance committed by one 'S' in front of his house. This led to verbal altercation. The next day, appellant no.1 who was nephew of 'S' came to the house of the deceased and threatened him. In the evening of the same day, appellant no.2, the brother of appellant no.1 called the D son of the deceased outside his house near the drain . and started beating him. The deceased who was leaving for market intervened to save his son. Appellant no.2 started beating the deceased with fists and blows. Appellant no.1 was allegedly standing nearby and instigating him. The son of the deceased cried for help that attracted local people who rushed to the spot and took the deceased to hospital in injured condition where he succumbed to injuries inflicted by appellant no.2 with a brick. E F The trial court convicted both the appellants under Section 304 Part I r/w Section 34 IPC and sentenced to undergo rigorous imprisonment for ten years besides a fine of Rs.5000 each and in default to suffer further G imprisonment for a period of one year. The High Court upheld the conviction and sentence. The instant appeal was filed 'challenging the order of the High Court. Partly allowing the appeal, the Court H 232 SUPREME COURT REPORTS [2012) 6 S.C.R. A HELD: There was no evidence to suggest any pre- meditation on the part of the appellants to assault the deceased or 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 B that there was a minor incident in which some hot words were exchanged between the deceased and 'S'. Even on the following day, the incident near the drain involved appellant No.1 and the complainant-son of the deceased. It was only when the deceased noticed the incident and c intervened to save the complainant, that appellant no.2 started assaulting the deceased and inflicted injuries on his body that resulted in his death. Both the courts below have no d
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