Gadadhar Chandra vs The State Of West Bengal

NON­REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1661 OF 2009

GADADHAR CHANDRA ..… APPELLANT

v.

THE STATE OF WEST BENGAL ….. RESPONDENT

J U D G M E N T

ABHAY S. OKA, J.

1. The Sessions Court has convicted the appellant­accused

for an offence punishable under Section 302 read with Section

34 of the Indian Penal Code (for short ‘IPC’). The appellant has

been sentenced to undergo rigorous imprisonment for life. The

appeal preferred by the appellant against the judgment of the

Sessions Court has been dismissed by the impugned judgment

of the Calcutta High Court dated 23rd December 2008.

Signature Not Verified

FACTUAL ASPECTS Digitally signed by Jayant Kumar Arora Date: 2022.03.15 16:47:07 IST Reason: 2

2. The incident is of 2nd August 1976. PW1 Shri Khiroda

Mohan Paul, Head Master of a High School, and the deceased

Purna Chandra Ghosh, assistant teacher in the said school,

were returning home from the school at about 5.30 pm. Though

the deceased was having a bicycle, both were proceeding to their

village on foot. When they came near the railway gate, they

noticed that the accused (the appellant and Arjun Mondal, a

juvenile) were sitting along with Susanta Kr. Chandra and

Rabu. The appellant and the said Arjun came running from

behind and caught hold of the bicycle of deceased Purna

Chandra Ghosh. The appellant questioned the deceased as to

why he had assaulted his elder brother. Words were exchanged

between the appellant, Arjun and PW1 as well as the deceased.

The appellant and Arjun took out knives. When PW1 tried to

prevent the assault, the appellant brandished his knife and

threatened to assault PW1 in case he obstructs. There was a

scuffle between Arjun and the deceased. The deceased tried to

defend himself by using his bicycle and umbrella. In the scuffle,

Arjun stabbed the deceased with his knife. Thereafter, both the

appellant and Arjun left the place.

3

3. On the earlier date, this Court directed the learned counsel

appearing for the respondent­State of West Bengal to take

instructions on the progress of the trial against Arjun before the

Juvenile Justice Board. The learned counsel appearing for

respondent stated that the record of the Juvenile Justice Board

has been destroyed in the floods of 2000. Hence, the case

against Arjun has not progressed.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS

4. Shri Siddhartha Dave, the learned senior counsel

appearing for the appellant firstly submitted that Section 34 of

IPC was not attracted in the present case. He urged that prior

concert and pre­arranged plan to kill the deceased has not been

established. He submitted that the only overt act alleged

against the appellant is of brandishing a knife and threatening

to assault PW1. There was a scuffle between Arjun and the

deceased. It was Arjun who stabbed the deceased which led to

his death. He submitted that though the knife allegedly used by

Arjun was recovered, the knife allegedly used by the appellant

was admittedly not recovered. He urged that as Section 34 of

IPC will not apply to this case, the conviction of the appellant 4

will have to be set aside. He stated that the appellant has

undergone incarceration for approximately seven years and six

months.

SUBMISSIONS OF THE LEARNED COUNSEL FOR THE RESPONDENT

5. Shri Nikhil Parikshith, the learned counsel appearing for

the respondent­State, submitted that the testimony of PW1,

PW6, PW11 and PW13 shows that there was prior a enmity

between the appellant and the deceased, which establishes the

motive. He submitted that the statement of Arjun recorded

under Section 164 of the Criminal Procedure Code, 1973 (for

short ‘CrPC’) corroborates the role played by the appellant of

brandishing his knife. He urged that the non­recovery of the

knife used by the appellant is of no consequence as there is a

cogent evidence against the appellant. He submitted that there

was a meeting of minds and prior concert on the part of the

appellant and Arjun. He submitted that the statements made

by PW1 in his cross­examination show that blows were

exchanged between the appellant and the deceased. He

submitted that the appellant actively assisted Arjun by holding

the shirt’s collar of the deceased. He pointed out that the 5

appellant made no effort to prevent Arjun from committing the

crime. He urged that now the appellant cannot raise a

contention regarding the absence of common intention as the

said contention was never raised before the Trial Court or the

High Court.

6. He relied upon various decisions of this Court on Section

34 of IPC. The said decisions are Rajkishore Purohit v. State

of Madhya Pradesh and others1, Dhanpal v. State (NCT of

Delhi)2 and Pandurang, Tukia and Bhillia v. State of

Hyderabad3. He submitted that no interference is called for

with the judgments of the Sessions Court and High Court.

CONSIDERATION OF SUBMISSIONS

7. The prosecution’s case is that PW1 and the deceased were

proceeding to their village at about 5.30 in the evening on 2 nd

August 1976. When they reached the railway gate, they saw

that the appellant, Arjun, Susanta Kr. Chandra and Rabu were

sitting together. Only the appellant and Arjun got up and

started running after PW1 and the deceased. Appellant

1 (2017) 9 SCC 483 2 (2020) 5 SCC 705 3 AIR 1955 SC 216 6

questioned the deceased why he had assaulted one Dam

(Subhas Chandra), the appellant’s elder brother. The overt act

alleged against PW1 is that after words were exchanged, he

brandished a knife and threatened PW1 to assault. After PW1

retreated steps, Arjun tried to assault the deceased. By using

his bicycle, the deceased tried to defend himself. There was a

scuffle between the deceased and Arjun, and in the scuffle,

Arjun stabbed the deceased. Arjun fled to jungle, and the

appellant also left the place.

8. A question was asked to PW1 in the cross­examination

that how many blows were exchanged between Gangadhar and

the deceased. In response, PW1 stated that Arjun administered

blows to the deceased, and at that time, Gangadhar was holding

the shirt collar of the deceased. PW1 pleaded ignorance when a

suggestion was given to him in the cross­examination that

Arjun and the appellant also suffered injuries.

9. Apart from PW1, there is no other material witness. The

prosecution relied upon the statement of Arjun recorded under

Section 164 of CrPC. Even assuming that it is a confessional

statement, in view of Section 30 of the Indian Evidence Act, 7

1872, the same cannot be used against the appellant as Arjun

is being separately tried before the Juvenile Justice Board. It is

not the prosecution case that the appellant and Arjun were

waiting for the deceased near the road by which the deceased

used to go back to his village after attending the school. PW1

had stated that along with Arjun and the appellant, Susanta Kr.

Chandra and Rabu were also sitting. When the deceased and

PW1 came there, the appellant and Arjun ran after them. The

relationship between the appellant and Arjun is not brought on

record. If, according to the prosecution case, there was a

meeting of minds and prior concert between the appellant and

Arjun when they were sitting with Susanta Kr. Chandra and

Rabu, the prosecution ought to have examined both Susanta Kr.

Chandra and Rabu. In fact, they appear to be eye witnesses to

the incident. They were privy to the conversation between the

appellant and Arjun. The prosecution has not explained its

failure to examine these two crucial witnesses, who apart from

being eye witnesses, were sitting along with the appellant and

Arjun just before the incident near the place of incident. The

prosecution has withheld the evidence of two material witnesses

who could have thrown light on the incident. Hence, this is a 8

case for drawing an adverse inference against the prosecution.

Moreover, the knife allegedly used by the appellant has not been

recovered. According to the prosecution, the appellant

questioned the deceased why he had beaten Subhas Chandra,

the appellant’s elder brother. After that, there was an exchange

of words. The exchange of blows was between the deceased and

Arjun. The scuffle was between the deceased and Arjun.

Ultimately, it was Arjun who stabbed the deceased. As

consistently held by this Court, common intention contemplated

by Section 34 of IPC pre­supposes prior concert. It requires

meeting of minds. It requires a pre­arranged plan before a man

can be vicariously convicted for the criminal act of another. The

criminal act must have been done in furtherance of the common

intention of all the accused. In a given case, the plan can be

formed suddenly. In the present case, the non­examination of

two crucial eye witnesses makes the prosecution case about the

existence of a prior concert and pre­arranged plan extremely

doubtful.

10. Hence, the prosecution has failed to prove ingredients of

Section 34 of IPC in this case. The appellant has been 9

implicated only with the aid of section 34. Therefore, the appeal

must succeed.

11. Accordingly, the impugned judgments and orders dated

23rd December 2008 and 5th June 1990 of the High Court and

Sessions Court are hereby set aside. The appellant is acquitted

of the charges against him.

12. The appeal is allowed in the above terms. All the pending

applications, if any, also stand disposed of.

…………..…………………J (AJAY RASTOGI)

…………..…………………J (ABHAY S. OKA) New Delhi;

March 15, 2022.