LexBIVASH CHANDRA DEBNATH @ BIVASH D & OTHERS versus STATE OF WEST BENGAL
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(2015] 3 S.C.R. 906 A BIVASH CHANDRA DEBNATH @ BIVASH D & OTHERS B v. STATE OF WEST BENGAL (Criminal Appeal No. 157 of 2011) APRIL 16, 2015 [DIPAK MISRA AND PRAFULLA C. PANT, JJ.] C Penal Code, 1860: s.302 rlw s.149-Prosecution case was that fight took place resulting in death of one and injuries to others when appellants three in number along with 27 others started digging the land of the complainant party for constructing irrigation channel - Trial court D convicted the appellants and acquitted other accused - High Court upheld the order of trial court - Conviction challenged on the ground that only three of the accused were found guilty uls.302 rlw s.149 and unless it is proved E that unlawful assembly was formed by five or more persons the appellants could not have been convicted with the aid of s. 149 - Held: There was assembly of more than five persons with a common object to use the criminal force against the deceased - Only for the reason that 27 others F got acquitted as the charge could not be proved against them beyond reasonable doubt, it cannot be said that the persons who committed the crime were only three in number or that the assembly was of three persons only - There was ample evidence to suggest that the appellants G whose role was specifically proved were accompanied with others - In view of the facts and circumstances that there was a sudden fight and there was no premeditation on the part of the appellants to commit the murder, The offence is H 906 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 907 OF WEST BENGAL not punishable uls.302 but uls.304 Part I. Partly allowing the appeal, the Court HELD: 1. There are four eye witnesses who have deposed about the role of the appellants in commission A of the crime. In his deposition, PW-1 specifically B stated that the accused-appellants armed with "Daos" (sharp-edge weapons) caused death of the victim- deceased by assaulting him with the help of said weapon. PW-2, PW-3 and PW-4 (all eye witnesses} corroborated the oral testimony of PW-1. [Paras 10 and C 11] [913"H; 914-B-C] 2. There was assembly of more than five persons with a common object to use the criminal force against the deceased. Only for the reason that 27 others got D acquitted as the charge could not be proved against them beyond reasonable doubt, it cannot be said that the persons who committed the crime were only three in number or that the assembly was of three persons only. There was ample evidence to suggest that the E appellants whose role is specifically proved on the record, were accompanied with others. Considering the facts and circumstances of the case at hand, particularly, the fact that there was a sudden fight between the appellants and the deceased who was F accompanied by PW-1, PW-2, PW-3, and PW-4 and further considering that there was no premeditation on the part of the appellants to commit the murder, it is a fit case to hold that the offence committed by the G appellants is not punishable under Section 302 IPC, but under Section 304 Part I IPC. [Paras 13, 20] [914-G-H; 915-A-B; 919-D-F] Khem Karan and Ors. v. The State of U.P and Anr. (1974) 4 sec 603: 1974 (3) SCR 863; Dharam Pal and H 908 SUPREME COURT REPORTS (2015] 3 S.C.R. A_ Ors. v. The State of /.J.P. (1975) 2 SCC 596: 1976 (1) SCR587; Dahari and Ors. v. State of Uttar Pradesh (2012) 10 SCC 256: 2012 (8) SCR1219; Shaji and Ors. v. State of Kera/a (2011) 5 SCC 423: 2011 (6) SCR210; Pu/icherla Nagaraju alias Nagaraja Reddy v. State of A.P. (2006) 11 B SCC 444: 2006 (4)Suppl. SCR633 - relied on. c D Case Law Reference 1974 (3) SCR 863 relied on. Para 14 1976 (1) SCR 587 relied on. Para 15 2012 (8) SCR 1219 relied on. Para 16 2011 (6) SCR 210 relied on. Para 17 2006 (4) Suppl. SCR 633 relied on. Para 19 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 157 of 2011. E From the Judgment and Order dated 02.03.2010 of the High Court of Calcutta in C.R.A. No. 235 of 1994. Ram Jethmalani, Bijan Kumar Ghosh, Rajeev Tewari, Pranav Diesh, P. R. Mala, Karan Kalia, Ashish Dixit for the F Appellants . • G Anip Sachthey, Mohit Paul, Shagun Matta for the Respondent. The Judgment of the Court was delivered by PRAFULLA C. PANT, J. 1. This appeal is directed against judgment and order dated 2.3.2010, passed by the High Court of judicature at Calcutta in Criminal Appeal No. 235 of 1994 whereby said Court has dismissed the ap
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