{"id":159643,"date":"2003-12-19T00:00:00","date_gmt":"2003-12-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chanakya-dhibardead-vs-state-of-west-bengal-and-ors-on-19-december-2003"},"modified":"2017-04-17T13:02:30","modified_gmt":"2017-04-17T07:32:30","slug":"chanakya-dhibardead-vs-state-of-west-bengal-and-ors-on-19-december-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chanakya-dhibardead-vs-state-of-west-bengal-and-ors-on-19-december-2003","title":{"rendered":"Chanakya Dhibar(Dead) vs State Of West Bengal And Ors on 19 December, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Chanakya Dhibar(Dead) vs State Of West Bengal And Ors on 19 December, 2003<\/div>\n
Author: J Arijit Pasayat<\/div>\n
Bench: Doraiswamy Raju, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (crl.)  728 of 1997\n\nPETITIONER:\nChanakya Dhibar\t (Dead)\t\t\t\t\t\n\nRESPONDENT:\nState of West Bengal and Ors.\t\t\t\t\n\nDATE OF JUDGMENT: 19\/12\/2003\n\nBENCH:\nDORAISWAMY RAJU & ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT,J<\/p>\n
\tThe informant has filed this appeal questioning judgment of
\nacquittal rendered by a learned Single Judge of the Calcutta High Court
\nacquitting five respondents (hereinafter referred to as the ‘accused’ by
\ntheir respective names). Since he has died during the pendency of the
\nappeal, an application for substitution by his legal representatives has
\nbeen filed which is allowed.\n<\/p>\n
\tThe trial Court found the respondents guilty of offences
\npunishable under Sections 148 and 304 Part I read with Section 149 of
\nthe Indian Penal Code, 1860 (in short the ‘IPC’). Law was set in motion
\nby PW-1(Chanakya) on the accusation that Jaba Dhibar (hereinafter
\nreferred to as the ‘deceased’) was assaulted severely by five
\nrespondents on the date of occurrence i.e. on 16.9.1985 at about 9.45
\np.m. Naran Dhibar (PW-3) who was accompanying him saw the assault by
\naccused Mana Bhattacharjee and fearing assaults on him ran away and
\ninformed the family members of the deceased. On hearing about the
\nassaults, the informant, his elder brother Naran and Sandhya, wife of
\nthe deceased (PW-2) went to the spot. When they arrived there finding
\nthe deceased with bleeding injuries, took him to the Bankura hospital on
\npolice jeep. Apart from PW-3, a rickshaw puller Pradip Das (PW-5) was
\nexamined to show that he has seen the deceased being surrounded by
\naccused persons and assaulted him.  The first information report was
\nlodged at about 10.25 p.m. in which the names of the five respondents
\nwere indicated. Sub-Inspector (PW-9) attached to the Bankura Police
\nStation took up investigation. The doctor (PW-4) who examined the
\ndeceased found a sharp cut injury on top of the deceased’s skull. He was
\nattended to by other doctor (PW-15). He continued to be under treatment
\ntill 13.10.1985 when he was shifted to S.S.K.M. hospital, Calcutta and
\nultimately he breathed his last on 8.11.1985. Post mortem was conducted
\nby PW-18 who opined that the death was due to septicemia. The injury
\nwas, according to him, sufficient in the ordinary course of nature to
\ncause death and that it was homicidal. After completion of
\ninvestigation, charge sheet was placed for commission of offence
\npunishable under Sections 147, 148, 304 read with Section 149 IPC.
\nCharges were framed under Sections 148 and 304 Part I read with Section
\n149 IPC. Accused persons pleaded innocence. According to the defence
\nplea as evident from the cross examination of prosecution witnesses and
\nstatement of the accused persons recorded under Section 313 of the Code
\nof Criminal Procedure, 1973 (in short the ‘Code’) the accused persons
\nwere falsely implicated out of grudge. People of Pathakpara locality
\nmade attempts to evict the prostitutes from the locality in between
\nPathakpara and Keotpara, which was strongly opposed by Chanakya (PW-1).\n<\/p>\n
After considering the evidence on record, the trial Court held
\nthat accused persons were guilty of offence punishable under Sections
\n148 and 304 Part I read with Section 149 IPC. Each of the accused was
\nsentenced to undergo rigorous imprisonment for seven years and to pay a
\nfine of Rs.1,000\/- with default stipulation so far as offence punishable
\nunder Section 304 Part I read with Section 149 IPC and two years for the
\noffence punishable under Section 148 IPC.\n<\/p>\n
\tThe convicted accused persons filed appeal before the Calcutta
\nHigh Court. The High Court by the impugned judgment held that the two
\nwitnesses on whose evidence prosecution heavily relied on were not
\ntruthful witnesses. It was not explained as to how the accused persons
\nwould know the movements of the deceased, when both PWs 1 and 3 accepted
\ntheir presence nearby the place of occurrence was not known to anybody.
\nPW-5 could not have also seen the occurrence which was far away from the
\nroad. PW-3 could not also have seen the occurrence as he accepted to
\nhave run away after the accused persons stabbed the deceased. The
\ninmates of the nearby houses were not examined as prosecution witnesses.
\nThere must have been temple goers passing along the road. As PW-5 was
\nearlier prosecuted by the police, his antecedents were not very clean
\nand he appeared to be a tutored witness. There is no motive attributed
\nas to why the accused persons  would attack the deceased. On the other
\nhand, the needle of suspicion could be raised against Naran Dhibar (PW-\n<\/p>\n
3) who was the companion of the deceased and was his partner in the fish
\nbusiness. Though the death was due to the injury sustained, yet it has
\nnot been proved that the vital injury was caused by the accused persons.
\nAccordingly, the conviction made and sentences imposed were set aside.\n<\/p>\n
\tIn support of the appeal, Mr. Ranjit Kumar, learned senior counsel
\nsubmitted that the High Court’s judgment is based more on surmises and
\nconjectures, than analysing the evidence on record. Even the evidence
\nhas not been properly appreciated. Since the judgment of the High Court
\nis bereft of acceptable reasoning, the same is liable to be set aside
\nand the judgment of the trial Court should be restored.\n<\/p>\n
\tIn response, Mr. U.R. Lalit, learned senior counsel for the
\naccused submitted that the view taken by the High Court is a possible
\nview. It is not that the High Court has not analysed the evidence. It
\nhas arrived at the right conclusions. The evidence of PWs 3 and 5
\nclearly show that they could not have seen the occurrence as claimed.
\nPW-3 has accepted that he had run away after the accused had stopped the
\ndeceased. The first information report does not detail as to the
\nrespective roles played by the accused persons. In any event, the
\nevidence is not sufficient to bring in application of Section 149 IPC.
\nThere is no sound reasoning indicated to hold that there was any
\nunlawful assembly which is a sine qua non for the application of Section\n<\/p>\n
149. The identification as claimed by PWs 3 and 5 is improbabilised by
\nthe evidence of the Investigating Officer. He clearly stated that he had
\nnot mentioned anything about the street light or the torch light claimed
\nto have been carried by PW-3 in the case diary. PW-5’s presence at the
\nspot of occurrence has also not been explained and he at the most is a
\nchance witness and, therefore, his evidence could not have been acted
\nupon.\n<\/p>\n
\tIn essence, it was submitted that in an appeal against acquittal
\nthe jurisdiction under Article 136 of the Constitution of India, 1950
\n(in short the ‘Constitution’) should not be exercised. Learned counsel
\nfor the State of West Bengal supported the stand taken by the informant-
\nappellant.\n<\/p>\n
A bare perusal of the High Court’s judgment shows that the same is
\nbased more on surmises and conjectures than making an attempt to analyse
\nthe evidence. Some of the conclusions as rightly submitted by learned
\ncounsel for the appellant are contrary to record. The evidence of PW-5
\nhas been disbelieved on the ground that he could not have possibly seen
\nthe occurrence being far away from the road where he claimed to be
\nsitting. The evidence on record shows that the distance is even less
\nthan 10 yards. Another factor which seems to have weighed with the High
\nCourt is the statement of PW-3 that he had taken to his heels after the
\naccused persons stopped the deceased. The High Court has clearly over-
\nlooked the categorical evidence of PW-3, who  during cross examination
\nhas stated that after seeing the assault he had run away. The statement
\nto the effect that he ran away after the accused persons stopped the
\ndeceased is to be read along with other parts of the evidence and not in
\nan isolated way. The statement made in the cross examination to the
\neffect that he ran away after seeing the assaults is significant. The
\nHigh Court has also raised suspicion over PW-3’s conduct in not lodging
\nthe information first and going to the house of the deceased and not his
\nown house which was nearer. This according to us is really of no
\nconsequence. The deceased was closely related to him and, therefore, as
\nexplained in evidence he thought it proper to inform the relatives of
\ndeceased first so that medical treatment could be immediately provided.
\nThere was also no delay in lodging the FIR. The occurrence took place at
\nabout 9.45 p.m. and the information with the police was lodged at about
\n10.15 p.m. There was no evidence to show that the temple goers were
\npassing on the roads. The hypothetical conclusion of the High Court that
\npeople must be passing is without any foundation. The evidence of PW-5
\nhas been discarded because of his antecedents. When the evidence has
\nbeen analysed carefully by the trial Court to find that he is a truthful
\nwitness, his antecedents should not have weighed with the High Court to
\ncompletely discard his evidence. There is also no material to support
\nthe conclusion of the High Court that he was a tutored witness. The most
\nvulnerable conclusion of the High Court relates to its view regarding
\nPW-3 because he claimed to have accompanied the deceased. Such a
\nconclusion to say the least borders on absurdity and is without any
\nfoundation for such a conclusion. The High Court should not have
\nrecorded such a finding. The High Court also doubted PW-3’s evidence on
\nthe ground that he did not accompany the deceased to the hospital. The
\nwitnesses PW-2 and PW-3 have categorically stated that PW-2 had seen the
\ndeceased in an injured condition and therefore PW-3 accompanied her to
\nthe deceased’s house when the deceased was shifted to the hospital.\n<\/p>\n
\tIn view of the aforesaid position, clearly the High Court was
\nwrong in holding the accused persons to be not guilty.\n<\/p>\n
However, one plea which was urged with some amount of vehemence
\nwas the applicability of Section 149 IPC.\n<\/p>\n
 The emphasis in Section 149 IPC is on the common object and not
\non common intention.  Mere presence in an unlawful assembly cannot
\nrender a person liable unless there was a common object and he was
\nactuated by that common object and that object is one of those set out
\nin Section 141.  Where common object of an unlawful assembly is not
\nproved, the accused persons cannot be convicted with the help of Section\n<\/p>\n
149.  The crucial question to determine is whether the assembly
\nconsisted of five or more persons and whether the said persons
\nentertained one or more of the common objects, as specified in Section\n<\/p>\n
141.  It cannot be laid down as a general proposition of law that unless
\nan overt act is proved against a person, who is alleged to be a member
\nof unlawful assembly, it cannot be said that he is a member of an
\nassembly.  The only thing required is that he should have understood
\nthat the assembly was unlawful and was likely to commit any of the acts
\nwhich fall within the purview of Section 141.  The word ‘object’ means
\nthe purpose or design and, in order to make it ‘common’, it must be
\nshared by all.  In other words, the object should be common to the
\npersons, who compose the assembly, that is to say, they should all be
\naware of it and concur in it.  A common object may be formed by express
\nagreement after mutual consultation, but that is by no means necessary.
\nIt may be formed at any stage by all or a few members of the assembly
\nand the other members may just join and adopt it. Once formed, it need
\nnot continue to be the same.  It may be modified or altered or abandoned
\nat any stage.  The expression ‘in prosecution of common object’ as
\nappearing in Section 149 have to be strictly construed as equivalent to
\n‘in order to attain the common object’. It must be immediately connected
\nwith the common object by virtue of the nature of the object.  There
\nmust be community of object and the object may exist only up to a
\nparticular stage, and not thereafter.  Members of an unlawful assembly
\nmay have community of object up to certain point beyond which they may
\ndiffer in their objects and the knowledge, possessed by each member of
\nwhat is likely to be committed in prosecution of their common object may
\nvary not only according to the information at his command, but also
\naccording to the extent to which he shares the community of object, and
\nas a consequence of this the effect of Section 149, IPC may be different
\non different members of the same assembly.\n<\/p>\n
\t‘Common object’ is different from a ‘common intention’ as it does
\nnot require a prior concert and a common meeting of minds before the
\nattack.  It is enough if each has the same object in view and their
\nnumber is five or more and that they act as an assembly to achieve that
\nobject.  The ‘common object’ of an assembly is to be ascertained from
\nthe acts and language of the members composing it, and from a
\nconsideration of all the surrounding circumstances.  It may be gathered
\nfrom the course of conduct adopted by the members of the assembly.  What
\nthe common object of the unlawful assembly is at a particular stage of
\nthe incident is essentially a question of fact to be determined, keeping
\nin view the nature of the assembly, the arms carried by the members, and
\nthe behaviour of the members at or near the scene of the incident.  It
\nis not necessary under law that in all cases of unlawful assembly, with
\nan unlawful common object, the same must be translated into action or be
\nsuccessful. Under the Explanation to Section 141, an assembly which was
\nnot unlawful when it was assembled, may subsequently become unlawful.
\nIt is not necessary that the intention or the purpose, which is
\nnecessary to render an assembly an unlawful one comes into existence at
\nthe outset.  The time of forming an unlawful intent is not material. An
\nassembly which, at its commencement or even for some time thereafter, is
\nlawful, may subsequently become unlawful. In other words it can develop
\nduring the course of incident at the spot co instanti.\n<\/p>\n
Section 149, IPC consists of two parts.  The first part of the
\nsection means that the offence to be committed in prosecution of the
\ncommon object must be one which is committed with a view to accomplish
\nthe common object.  In order that the offence may fall within the first
\npart, the offence must be connected immediately with the common object
\nof the unlawful assembly of which the accused was member.  Even if the
\noffence committed is not in direct prosecution of the common object of
\nthe assembly, it may yet fall under Section 141, if it can be held that
\nthe offence was such as the members knew was likely to be committed and
\nthis is what is required in the second part of the section.  The purpose
\nfor which the members of the assembly set out or desired to achieve is
\nthe object.  If the object desired by all the members is the same, the
\nknowledge that is the object which is being pursued is shared by all the
\nmembers and they are in general agreement as to how it is to be achieved
\nand that is now the common object of the assembly.  An object is
\nentertained in the human mind, and it being merely a mental attitude, no
\ndirect evidence can be available and, like intention, has generally to
\nbe gathered from the act which the person commits and the result
\ntherefrom.  Though no hard and fast rule can be laid down under the
\ncircumstances from which the common object can be culled out, it may
\nreasonably be collected from the nature of the assembly, arms it carries
\nand behaviour at or before or after the scene of incident.  The word
\n‘knew’ used in the second branch of the section implies something more
\nthan a possibility and it cannot be made to bear the sense of ‘might
\nhave been known’. Positive knowledge is necessary. When an offence is
\ncommitted in prosecution of the common object, it would generally be an
\noffence which the members of the unlawful assembly knew was likely to be
\ncommitted in prosecution of the common object.  That, however, does not
\nmake the converse proposition true; there may be cases which would come
\nwithin the second part but not within the first part.  The distinction
\nbetween the two parts of Section 149 cannot be ignored or obliterated.
\nIn every case it would be an issue to be determined, whether the offence
\ncommitted falls within the first part or it was an offence such as the
\nmembers of the assembly knew to be likely to be committed in prosecution
\nof the common object and falls within the second part. However, there
\nmay be cases which would be within first offences committed in
\nprosecution of the common object, but would be generally, if not always,
\nwith the second, namely, offences which the parties knew to be likely
\ncommitted in the prosecution of the common object.  (See Chikkarange
\nGowda and others v. State of Mysore,  AIR<\/a> 1956 SC 731.)<\/p>\n
\tThe other plea that definite roles have not been ascribed to the
\naccused and, therefore, Section 149 is not applicable, is untenable. A
\n4-Judge Bench of this Court in Masalti and Ors. v. State of U.P. (AIR<\/a>
\n1965 SC 202) observed as follows:\n<\/p>\n
\t“Then it is urged that the evidence given by
\nthe witnesses conforms to the same uniform pattern
\nand since no specific part is assigned to all the
\nassailants, that evidence should not have been
\naccepted.  This criticism again is not well founded.
\nWhere a crowd of assailants who are members of an
\nunlawful assembly proceeds to commit an offence of
\nmurder in pursuance of the common object of the
\nunlawful assembly, it is often not possible for
\nwitnesses to describe accurately the part played by
\neach one of the assailants.  Besides, if a large
\ncrowd of persons armed with weapons assaults the
\nintended victims, it may not be necessary that all of
\nthem have to take part in the actual assault.  In the
\npresent case, for instance, several weapons were
\ncarried by different members of the unlawful
\nassembly, but it appears that the guns were used and
\nthat was enough to kill 5 persons. In such a case, it
\nwould be unreasonable to contend that because the
\nother weapons carried by the members of the unlawful
\nassembly were not used, the story in regard to the
\nsaid weapons itself should be rejected.  Appreciation
\nof evidence in such a complex case is no doubt a
\ndifficult task; but criminal courts have to do their
\nbest in dealing with such cases and it is their duty
\nto sift the evidence carefully and decide which part
\nof it is true and which is not.”\n<\/p>\n
\tTo similar effect is the observation in Lalji v. State of U.P.<\/a>
\n(1989 (1) SCC 437). It was observed that:\n<\/p>\n
\t“Common object of the unlawful assembly can be
\ngathered from the nature of the assembly, arms used
\nby them and the behaviour of the assembly at or
\nbefore the scene of occurrence. It is an inference to
\nbe deduced from the facts and circumstances of each
\ncase.”\n<\/p>\n
In State of U.P. v. Dan Singh and Ors.<\/a> (1997 (3) SCC 747) it was
\nobserved that it is not necessary for the prosecution to prove which of
\nthe members of the unlawful assembly did which or what act. Reference
\nwas made to Lalji’s case (supra) where it was observed that “while
\novert act and active participation may indicate common intention of the
\nperson perpetrating the crime, the mere presence in the unlawful
\nassembly may fasten vicariously criminal liability under Section 149”.\n<\/p>\n
\tComing to the plea of the accused that PW-5 was ‘chance witness’
\nwho has not explained how he happened to be at the alleged place of
\noccurrence it has to be noted that the said witness was an independent
\nwitness. There was not even a suggestion to the witness that he had any
\nanimosity towards any of the accused. In a murder trial by describing
\nthe independent witnesses as ‘chance witnesses’ it cannot be implied
\nthereby that their evidence is suspicious and their presence at the
\nscene doubtful. Murders are not committed with previous notice to
\nwitnesses; soliciting their presence. If murder is committed in a
\ndwelling house, the inmates of the house are natural witnesses. If
\nmurder is committed in a street, only passersby will be witnesses. Their
\nevidence cannot be brushed aside or viewed with suspicion on the ground
\nthat they are mere ‘chance witnesses’. The expression ‘chance witness’
\nis borrowed from countries where every man’s home is considered his
\ncastle and everyone must have an explanation for his presence elsewhere
\nor in another man’s castle. It is quite unsuitable an expression in a
\ncountry where people are less formal and more casual.\n<\/p>\n
There is no embargo on the appellate Court reviewing the evidence
\nupon which an order of acquittal is based.  Generally, the order of
\nacquittal shall not be interfered with because the presumption of
\ninnocence of the accused is further strengthened by acquittal. The
\ngolden thread which runs through the web of administration of justice in
\ncriminal cases is that if two views are possible on the evidence adduced
\nin the case, one pointing to the guilt of the accused and the other to
\nhis innocence, the view which is favourable to the accused should be
\nadopted. The paramount consideration of the Court is to ensure that
\nmiscarriage of justice is prevented. A miscarriage of justice which may
\narise from acquittal of the guilty is no less than from the conviction
\nof an innocent. In a case where admissible evidence is ignored, a duty
\nis cast upon the appellate Court to re-appreciate the evidence where the
\naccused has been acquitted, for the purpose of ascertaining as to
\nwhether any of the accused really committed any offence or not. [See
\nBhagwan Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme\n<\/p>\n
567). The principle to be followed by appellate Court considering the
\nappeal against the judgment of acquittal is to interfere only when there
\nare compelling and substantial reasons for doing so.  If the impugned
\njudgment is clearly unreasonable and relevant and convincing materials
\nhave been unjustifiably eliminated in the process, it is a compelling
\nreason for interference. These aspects were highlighted by this Court in
\nShivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR<\/a> 1973  SC
\n2622), Ramesh Babulal Doshi v. State of Gujarat<\/a> (1996 (4) Supreme 167),
\nJaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore
\nJha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of Punjab
\nv. Karnail Singh<\/a> (2003 (5) Supreme 508 and State of Punjab v. Pohla
\nSingh and Anr.<\/a> (2003 (7) Supreme 17) and Suchand Pal v. Phani Pal and
\nAnr. (JT<\/a> 2003 (9) SC 17).\n<\/p>\n
\tAll the accused persons were armed. Their conduct before, during
\nand after the occurrence clearly brings about the object. The assembly
\nwas patently unlawful. It is  inconceivable that persons armed would
\nsurround the persons without any criminal object in mind. Mere fact that
\nonly one of them used the weapon does not really rule out application of
\nSection 149 IPC. Learned counsel for the accused persons submitted that
\ncontrary to the evidence of PWs 3 and 5 there was only one injury found
\nby the doctor. PWs 3 and 5 have stated about assaults and if five
\npersons were really assaulting the result would not have been only one
\ninjury. The definition of “assault” as given in Section 351 IPC makes
\nthe plea unacceptable. The trial Court had rightly and in proper legal
\nperspective convicted the accused-respondents under Section 148 and 304
\nPart I read with Section 149 IPC. The High Court’s judgment suffers from
\nserious infirmities making it indefensible and is therefore, set aside.
\nThe judgment of the trial Court recording conviction and imposing
\nsentences is restored. The appeal is allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Chanakya Dhibar(Dead) vs State Of West Bengal And Ors on 19 December, 2003 Author: J Arijit Pasayat Bench: Doraiswamy Raju, Arijit Pasayat CASE NO.: Appeal (crl.) 728 of 1997 PETITIONER: Chanakya Dhibar (Dead) RESPONDENT: State of West Bengal and Ors. DATE OF JUDGMENT: 19\/12\/2003 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-159643","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nChanakya Dhibar(Dead) vs State Of West Bengal And Ors on 19 December, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/chanakya-dhibardead-vs-state-of-west-bengal-and-ors-on-19-december-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chanakya Dhibar(Dead) vs State Of West Bengal And Ors on 19 December, 2003 - 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