Paragraph numbers below are the court’s original numbering, recovered from the source text.
9. Before further discussion, we think it just and proper to mention the ante mortem injuries found on the body of F the deceased (Ajit Nath) recorded by CW-1 Dr. Rabindra N. Kundu, after post mortem examination, in Ex. 5. The same are reproduced as under: – "1) One incised wound 5" x 1Y," muscle deep over the front of right elbow. 2) One incised wound 3" x 1 Y," bone deep over the right side of head beyond right ear. On exploring the wound, the temporal bone was found cut. BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 913 OF WEST BENGAL [PRAFULLA C. PANT, J.] 3) One incised wound 2Y:z'' x Yz" muscle deep over the A right side angle of jaw. 4) One incised wound 2" x 1" muscle deep over the lateral side of right knee. 5) One incised wound 4" x 1 Yz" muscle deep over the B lateral side of right leg. Bone fibula was found cut in two pieces. 6) One incised wound 6" x 2" over the right scapula c region. Bone scapula was found cut. 7) One incised wound 2%" x 1" muscle deep over the left side of neck. 8) A number of bruises over different parts of the body." D The Medical Officer opined that the deceased had died of shock and haemorrhage resulting from the ante mortem wounds described above. He further mentioned in his report (Ex. 5) that the ante mortem injuries were homicidal E in nature. CW-1 Dr. Rabindra N. Kundu stated that the wounds suffered by the deceased could have been caused by Tangi, Dao and the death could have been resulted in ordinary course of nature by such injuries. From the evidence of the Medical Officer read with the autopsy report, it is proved on the record that Ajit Nath died a homicidal death.
10. Now, we have to examine as to whether the courts below have rightly found that the appellants, along with G others, with common object, committed murder by causing the ante mortem injuries suffered by the deceased, or not. On this point there are four eye witnesses who have deposed about the role of the appellants in commission of the Crime. PW-1 Satya Charan bebnath has narrated the H A entire prosecution story and deposed about the role of the appellants Bivash Chandra Debnath @ Patal, Sambhu Ghosh and Sadananda Mondal, and some other accused. He has also explained as to how the quarrel started over digging the field of Ganesh Nath by the accused. In his B deposition he has specifically stated that the accused- appellants armed with "Daos" (sharp edge weapons) caused death of Ajit Nath by assaulting him with the help of said weapon.
11. PW-2 Kartik Nath, PW-3 Panchanan Debnath and PW-4 Dulal Nath (all eye witnesses) have corroborated the oral testimony of PW-1 Satya Charan Debnath. No doubt, these eye witnesses are related to the informant (PW-1), but merely for that reason their testimony cannot be D disbelieved, particularly, when their presence with the appellants at the spot appears to be natural. It is relevant to mention here that the incident had taken place in village Garibpur, and all the four witnesses belong to the same village. There appears to be no personal enmity on the part E of these witnesses as against the appellants.
12. On behalf of the appellants it is argued that only three of the accused have been found g·uilty of the charge of offence punishable under Section 302 read with Section F 149 IPC, and unless it is proved on the record that unlawful assembly was formed by five or more persons, the appellants could not have been convicted with the aid of Section 149.
13. We have examined the lower court record and we concur with the view taken by the courts below that there was assembly of more thari five persons with a common object to use the criminal force against the deceased. Only for the reason that 27 others got acquitted as the charge BIVASH CHANDRA DEBNATH@ BIVASH D v. STATE 915 OF WEST BENGAL [PRAFULLA C. PANT, J.] could not be proved against them beyond reasonable doubt, A 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 is ample evidence on the record to suggest that the appellants whose role is specifically proved on the record, were accompanied with others. Even B otherwise, since there is sufficient evidence proving the role of the appellants that they caused injuries, as quoted above, to the deceased which resulted in his death, even without aid of Section 149 IPC they are liable to be held guilty for causing death of Ajit Nath with common intention with the C aid of Section 34 IPC.
14. In Khem Karan and others v. The State ofU.P. and another1, in paragraph 6 this Court has made following observations: – " ….. the fact that a large number of accused have been acquitted and the remaining who have been convicted are less than five cannot vitiate the conviction under Section 149 read with the substantive offence if- as E in this case the Court has taken care to find – there are other persons who might not have been identified or convicted but were party to the crime and together constituted the statutory number."
15. In Dharam Pal and others v. The State of U.P. 2, in paragraph 10, expressing similar opinion, this Court observed as under: – " ….. If, for example, only five known persons are G alleged to have participated in an attack but the courts find that two of them were falsely implicated, it would 1 (1974) 4 sec 603 2 (1975) 2 sec 596 [2015].3 S.C.R. be quite natural and logical to infer or presume that the participants were less than five in number. On the other hand, if the Court holds that the assailants were actually five in number, but there could be a doubt as to the identity of two of the alleged assailants, and, therefore, acquits two of them, the others will not get the benefit of doubt about the identity of the two accused so long as there is a firm finding, based on good evidence and sound reasoning, that the participants were five or more in number." c
16. In Dahari and others v. State of Uttar Pradesh3, in paragraph 20, this Court has held as under: – "20. Undoubtedly, this Court has categorically held that o in such a situation, a conviction cannot be made with the aid of Section 149 IPC, particularly when, upon the acquittal of some of the accused, the total number of accused stands reduced to less than five, and it is not the case of the prosecution that there are in fact, some other accused who have not yet been put to trial. However, it is also a settled legal proposition that in such a fact situation, the High .court could most certainly have convicted the appellants, under Section 302 read with Section 34 IPC."
17. In Shaji and others v. State of Kerala4, this Court , in paragraph 12, has observed as under: – "12. In view of the decision of the Constitution Bench in Mohan Singh v. State of Punjab (AIR 1963 SC 174), in the case on hand, even after acquittal of the two accused from all the charges levelled against them, if 3 (2012) 10 sec 2ss H 4 (2011) s sec 423 BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 917 OF WEST BENGAL [PRAFULLA C. PANT, J.] there is any material that they were members of the A unlawful assembly, the conviction under Section 302 can be based with the aid of Section 149."
18. Shri Ram Jethmalani, learned senior counsel for the appellants, next submitted before us that even if the B prosecution story is taken to be true, the act allegedly committed by the appellants only constitutes culpable homicide not amounting to murder, punishable under Section 304 Part 11 IPC. In this connection, attention of this Court is drawn to Exception 4 to Section 300 IPC, which C reads as under: – "Exception 4 – Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without o the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation – It is immaterial in such cases which party offers the provocation or commits the first assault."
19. On appreciation of evidence on record of the present case, we agree with the contention of the learned senior counsel for the appellants that since it is a case of sudden fight and there was no premeditation on the part F of the appellants and the offenders have not acted in "unusual manner'', their acts are covered under Exception 4 to Section 300 IPC. In the similar case in Pu/icherla Nagaraju alias Nagaraja Reddy v. State of A.P.5, in paragraph 29, this Court has discussed the issue as to G when the conviction can be converted from an offence 3 (2012) 10 sec 256 4 (2011) s sec 423 s c2006) 11 sec 444 punishable under Section 302 IPC to Section 304 Part I or 304 Part II IPC and the same is reproduced hereunder: c "29. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II.
Many petty or insignificant matters – plucking of a fruit, straying of cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under Section 302, are not .converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances: (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was BIVASH CHANDRA DEBNATH @ BIVASH D v. STATE 919 OF \'VEST BENGAL [PRAFULLA C. PANT, J.] any premeditation; (vit) whether there was any prior A enmity or whether the deceased was a stranger; (viit) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix).whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has B acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which C may throw light on the question of intention. Be that as it may."
20. In view of the above principle of law laid down by this Court, and considering ,the facts and circumstances D of the case at hand, particularly, the fact that in the present case it is clear that there was a sudden fight between the appellants and the deceased who was accompanied by PW-1 Satya Charan Debnath, PW-2 Karlik Nath, PW-3 E Panchanan Debnath and PW-4 Dulal Nath, and further considering that there was no premeditation on the part of the appellants to commit the murder, we are of the view that it is a fit case to hold that the offence committed by the appellants is not punishable under Section 302 IPC, but under Section 304 Part I IPC.
21. Accordingly, the appeal is partly allowed. Conviction and sentence recorded by the courts below under Section 302 read with Section 149 IPC is set aside. Instead, all the three appellants, namely, Bivash Chandra G Debnath @ Pata!, Sambhu Ghosh @ Sambhu Charana Ghosh and Sadananda Mondal, are convicted under Section 304 Part I read with Section 34 IPC, and each one of them is sentenced to rigorous imprisonment for a H A period of seven years. The period of sentence already undergone by them shall be set off from the sentence awarded by this Court. Devika Gujral Appeal partly allowed .