GADADHAR CHANDRA VS THE STATE OF WEST BENGAL

GADADHAR CHANDRA VS THE STATE OF WEST BENGAL 

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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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