GADADHAR CHANDRA VS THE STATE OF WEST BENGAL
GADADHAR CHANDRA VS THE STATE OF WEST BENGAL
1
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.
FACTUAL ASPECTS
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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.
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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
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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
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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 2nd
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
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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,
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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
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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
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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.
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