CHANAKYA DHIBAR (DEAD) versus STATE OF WEST BENGAL AND ORS.

Citation: [2003] SUPP. 6 S.C.R. 1181 · Decided: 19-12-2003 · Supreme Court of India · Bench: DORAISWAMY RAJU · Disposal: Appeal(s) allowed

Judgment (excerpt)

.~ 
CHANAKY A DHIBAR (DEAD) 
A 
V. 
ST ATE OF WEST BENGAL AND ORS. 
DECEMBER 19, 2003 
[DORAISWAMY RAJU AND ARIJIT PASAYAT, JJ.] 
B 
Penal Code, 1860 : 
Sections 148, 304 Part I r/w Section 149-Death caused-Assault by 
five accused-Witnessed by two eye-witnesses-One of them independent c 
witness-Conviction by trial court-Acquittal by High Court disbelieving 
the witnesses-On appeal, held: Acquittal not justified-High Court's 
judgment was based on surmises and conjectures and not on analysis of 
evidence-Conclusions of High Court is contrary to records of the case. 
Section 149-Common object-Scope of-Discussed-Section 141. D 
'Cornman object' and 'Common intention '-Distinction between. 
Criminal Trial : 
E 
Chance witness-Reliability on-Held: Evidence of such witness 
cannot be brushed aside or viewed with suspicion-Jn a murder trial 
evidence of an independent witness cannot be discarded describing it as 
chance witness. 
Constitution of India, 1950-Article 136-Special Leave Petition- F 
Scope of interference with order of acquittal-Held : Generally such order 
should not be interfered with-However, interference permissible when the 
order is unreasonable and relevant and convincing materials have been 
unjustifiably eliminated. 
G 
Five respondents-accused were charged for having assaulted a 
person severely and causing his death. PW-3 who was accompanying 
the deceased saw the assault and fearing attack on him ran away and 
. ,, 
informed the family members of the deceased i.e. his brother and his 
wife (PW-2) who took the deceased to the hospital. The incident was H 
1181 
1182 
SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R. 
A also seen by a rickshaw puller (PW-5). In the FIR names of the five 
respondents-accused were indicated. Trial Court held the accused 
guilty of offences punishable under Sections 148 and 304 Part I read 
with Section 149 IPC. 
On appeal, High Court held that the two eyewitnesses were not 
B truthful witnesses; that PW-3 could not have seen the occurrence as 
he had fled away from the spot; that his conduct of not lodging the 
information and going to the house of the deceased and his not 
accompanying the deceased to the hospital raises suspicion; that 
suspicion for the occurrence could be raised against PW-3 who was 
C companion of the deceased and was partner in his business; that PW-
5 could not have seen the occ•irrence being far away from the place; 
that he also could not be relied on as his antecedents were not clear; 
that he appeared to be tutored witness; and that there could have been 
temple goers on the road who would have seen the occurrence. Hence 
D accused were acquitted. 
E 
In appeal to this Court, respondent-accused contended that 
evidence of PWs 3 and 5 show that they could not have seen the 
occurrence as claimed; that evidence of PWS could not have been acted 
upon as he was only a chance witness; that FIR did not have detail 
as to respective roles played by the accused persons; evidence is not 
sufficient to bring in application of Section 149 IPC; and that in an 
appeal against acquittal jurisdiction under Article 136 of the Consti-
tution of India cannot be exercised. 
F 
Allowing the appeal, the Court 
G 
HELD : 1.1. High Court was wrong in holding the accused persons 
to be not guilty. High Court's judgment is based more on surmises and 
conjectures than making an attempt to analyse the evidence. Some of 
the conclusions are contrary to record. All the accused persons were 
armed. Their conduct before, during and after the occurrence clearly 
brings about the object. The assembly was patently unlawful. It is 
inconceivable that persons armed would surround the persons without 
any criminal object in mind. Mere fact that only one of them used the 
weapon does not really rule out application of Section 149 IPC. It cannot 
H be said that since definite roles have not been ascribed to the accused 
CHANAKY A DHIBAR v. STA TE OF WEST BENGAL 
1183 
and, Section 149 is not applicable. In view of definition of "default" as A 
given in Section 351 IPC, it cannot be said that if five persons were really 
assaulting, the result would not have been only one injury. The trial 
Court had rightly and in proper legal perspective convicted the accused-
respondents under Section 148 and 304 Part I read with Section 149 
IPC. [1188-H; 1189-A; 1196-A-C] 
B 
Masalti and Ors. v. State of UP., AIR (1965) SC 202; Lalji v. State 
o/UP., [1989] 1SCC437 and State of UP. v. Dan Singh and

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