SAROJ @ SURAJ PANCHAL & ANR.versusSTATE OF WEST BENGAL

                         [2014] 4 S.C.R. 646


A              SAROJ @ SURAJ PANCHAL & ANR.
                                  v.
                     STATE OF WEST BENGAL
                 (Criminal Appeal No. 734 of 2014)
                           APRIL 3, 2014
B
             [T.S. THAKUR AND C. NAGAPPAN, JJ.]

         Penal Code, 1860 - s.304 Part I rlw s.34 and s.300, First
    Exception - There was love affair between 'B' and 'S' - On the
C   occurrence night, 'S' went to the house of 'B' to meet her -
    Annoyed by the presence of 'S' in their house in the night,
    the father and uncle of 'B' (the appellants) and other accused
    persons beat 'S' and dragged him through the staircase which
    resulted in injuries to 'S' and ultimately in his death -
o   Conviction of appellants uls}02 rlw s.34 /PC - Challenge to
    - Held: Nobody would tolerate an intruder into their house in
    the night hours - By no means, can it be held to be a case of
    pre-meditation - It was a case of grave and sudden provocation
    and would come under the F~t Exception to s.300 /PC -
E   Death was caused by the acts of the appellants done with the
    intention of causing such bodily injury as is likely to cause
    death - Conviction of appellants accordingly altered to that u/
    s.304 Part I rlw s.34 /PC alongwith 7 years RI.

       There was love affair between 'S' (the brother of PW1)
F and 'B' (the daughter of accused no.1 ). The appellants
  (accused nos.1 and 3) alongwith two other accused beat
  'S' with iron rod and lathi and dragged him through the
  staircase when he went to the house of 'B' at night to
  meet her. 'S' died of injuries sustained during the
G occurrence.

        The trial court convicted all the four accused under
    Section 302 read with Section 34 IPC and sentenced
    each of them to life imprisonment. In appeal, the High
H                              646
 SAROJ @ SURAJ PANCHAL & ANR. v. STATE OF            647
              WEST BENGAL
Court affirmed the conviction of accused nos.1 and 3, and   A
therefore the present appeal by the said two accused.

    The appellants pleaded before this Court that the
occurrence took place on account of sudden
provocation and the act was committed by them without
                                                            8
premeditation and it would fall under First Exception to
Section 300 IPC.

    Partly allowing the appeal, the Court

     HELD: 1. It is not in dispute that there was a love c ·
affair between 'B' and 'S' and it was not liked by the family
members of 'B'. On the occurrence night at about 8.00
p.m. 'S' went to the house of 'B' to meet her. Annoyed by
the presence of 'S' in the night in their house the
appellants and other accused persons beat 'S' and 0
dragged him from the first floor to the ground floor
through wooden staircase which resulted in injuries.
Nobody would tolerate such an intruder into their house
in the night hours. By no means, can it be held to be a
case of premeditation and it was a case of grave and E
sudden provocation and would come under the First
Exception to Section 300 IPC. [Para 8] [651-A-C]

    Mangesh vs. State of Maharashtra (2011) 2 SCC 123:
2011 (1) SCR 72; State of Punjab vs. Jagtar Singh & Ors.
(2011) 14 SCC 678: 2011 (9) SCR 494 - referred to.          F

     2. Looking at the nature of injuries sustained by the
deceased and the circumstances, it can be concluded
that the death was caused by the acts of the appellants/
accused done with the intention of causing such bodily G
injury as is likely to cause death and therefore the offence
would squarely come within the first part of Section 304
IPC and the appellants would be liable to be convicted
for the said offence. The conviction of the appellants for
the offence under Section 302 read with Section 34 IPC H
    648      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A   and the sentence of life imprisonment each imposed on
    them are set aside and instead they are convicted for the
    offence under Section 304 Part I read with Section 34 IPC
    and sentenced to undergo seven years rigorous
    imprisonment each. [Paras 9, 11] (651-D-E, G-H]
B
                          Case Law Reference:
          2011 (1) SCR 72          referred to            Para 8
          2011 (9) SCR 494         referred to            Para 8

C       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 734 of 2014.
        from the Judgment and Order dated 12.05.2008 of the
    High Court of Calcutta in CRA No. 207 of 2002.
D         A.K. Chawla (AC) for the Appellant.
          Anip Sachthey, Shagun Matta for the Respondent.
          The Judgment of the Court was delivered by
E         C. NAGAPPAN, J. 1. Leave granted.
        2. This appeal is preferred against the judgment of the
    High Court of Calcutta in C.R.A. no.207 of 2002.
         3. The appellants herein are accused nos.1 and 3
F respectively in Sessions Trial Case no.XXX(April) of 2000 on
  the file of Fourth Additional Sessions Judge at Howrah and they
  were tried along with two other accused and all of them were
  convicted for offence under Section 302 read with Section 34
  IPC and each of them was sentenced to undergo imprisonment
G for life and to pay a fine of Rs.10,000/- and in default to undergo
  rigorous imprisonment for one year. Aggrieved by the conviction
  and sentence accused nos.1 to 4 preferred appeal in Criminal
  Appeal no.207 of 2002 and the High Court by impugned
  judgment dated 12.5.2008 dismissed the appeal preferred by
H accused nos.1 and 3. Challenging the same they have
 SAROJ @ SURAJ PANCHAL & ANR. v. STATE OF                    649
       WEST BENGAL [C. NAGAPPAN, J.]

preferred the present appeal.                                        A
     4. The prosecution case in brief is as follows : Accused
no.1 Saroj @ Suraj Panchal is the elder brother of accused no.3
Anil Panchal. Accused no.2 Tapan Panchal and accused no.4
Swapan Panchal are sons -of accused no.1 Saroj @ Suraj               8
Panchal. PW1 Srikant Ray and PW9 Sameer Ray are brothers
of deceased Sukumar Ray. All of them are residents of
Bangalpur village and their houses were nearby. There was a
love affair between Sukumar Ray and Kumari Bandana Panchal
aged about 20 years, daughter of accused no.1 Saroj @ Suraj          C
Panchal. On 10.7.1990 at about 8.00 p.m. a hue and cry was
heard from the first floor of the house of accused no.1 Saroj @
Suraj Panchal and PW1 to PW4, PW9 and PW12 went there
and saw accused nos.1 to 4 beating Sukumar Ray with iron rod
and lathi and dragging him by tying his hands and legs through       D
wooden staircase from the first floor to the ground floor and left
him in the dange of Gobinda Mondal. PW11 Tapan Kumar
Pramanik took the injured Sukumar Ray to the Bagnan Hospital
by his trolley van. PW1 Srikant Ray lodged a written complaint
at 23.25 hrs. on 10. 7.1990 in Bag nan Police Station. Exh.. 2 is
the G.D. Entry. PW13 the sub-Inspector of the Police registered      E
the case against the accused and Exh.3 is the F.l.R. Sukumar
Ray died at 1600 hrs. on 11. 7.1990.

    5. PW14 Dr. Kumud Ranjan Chatterjee conducted the
post-mortem and found the following :                                F

      i)     One abrasion 2"x2" over left leg;

      ii)    One bruise mark over left temple region with black
             eye;
                                                                     G
      iii)   One lacerated wound 4"x1" X bone deep over left
             occipital region;

      iv)    One lacerated wound 2"x W' X bone deep over right
             temporal region;
                                                                     H
    650      SUPREME COURT REPORTS                 [2014] 4 S.C.R.

A         On dissection he found multiple diffused and spotted
          haematoma on the scalp present, depressed fracture over
          right temporal occipital region with haemorhage inside the
          brain tissue.

    He opined that death was .caused due to injuries sustained
8   particularly the head injury. After completing investigation the
    final report came to be filed against the accused persons 1 to
    4. In order to prove its case the prosecution examined PW1 to
    PW19 and marked documents. No evidence was let in on the
    side of the defence. The Trial Court found accused nos.1 to 4
C   guilty of the charge of murder and sentenced them as narrated
    above. On appeal the conviction and sentence imposed on
    accused nos.1 and 3 were confirmed. Challenging the same
    they preferred appeal and this Court by order dated 19.10.2012
    issued notice on the question of the nature of offence and
D   sentence only.

         6. During the occurrence ~ppellants herein/accused nos.1
    and 3 along with two other accused beat Sukumar Ray with iron
    rod and lathi is established by the testimonies of the eye
E   witnesses namely PW1 to PW4, PW9 and PW12. Sukumar
    Ray died of injuries sustained during the occurrence is also
    proved by the medical evidence let in by the prosecution in the
    case.

         7. The learned counsel for the appellants contended that
F   the occurrence took place on account of sudden provocation
    and the act was committed by the appellants without
    premeditation and it would fall under First Exception to Section
    300 IPC and the first appellant is 80 years old and the second
    appellant is 76 years old. Per contra the learned counsel
G   appearing for the respondent State submitted that the conviction
    and sentence imposed on the appellants are proper.
         8. It is not in dispute that there was a love affair between
    Bandana Panchal and Sukumar Ray and it was not liked by the
H   family .members of Bandana Panchal. On the occurrence night
 SAROJ @ SURAJ PANCHAL & ANR. v. STATE OF                  651
       WEST BENGAL [C. NAGAPPAN, J.]
at about 8.00 p.m. Sukumar Ray went to the house of Bandana A
Panchal to meet her. Annoyed by the presence of Sukumar Ray
in the night in their house the appellants and other accused
persons beat Sukumar Ray and dragged him from the.first floor
to the ground floor through wooden staircase which resulted in
injuries. Nobody would tolerate such an intruder into their house B
in the night hours. By no means, can it be held to be a case of
premeditation and it was a case of grave .and sudden
provocation and would come under the First Exception to
Section 300 IPC. The fact situation bears great similarity to that
in the decisions in Mangesh vs. State of Maharashtra (2011) c
2 SCC 123 and State of Punjab vs. Jagtar Singh & Ors. (2011)
14 sec 678.
     9. Looking at the nature of injuries sustained by the
deceased and the circumstances as enumerated above it can
be concluded that the death was caused by the acts of the D
appellants/accused done with the intention of causing such
bodily injury as is likely to cause death and therefore the offence
would squarely come within the first part of Section 304 IPC and
the appellants would be liable to be convicted for the said
offence. The conviction of the appellants/accused nos.1 and 3 E
under Section 302 read with Section 34 IPC is liable to be set
aside.
      10. We are of the considered view that imposition of seven
years rigorous imprisonment on each of the appellants for the
conviction under Section 304 Part I IPC would meet the ends        F
of justice.
     11. In the result the Criminal Appeal is partly allowed and
the conviction of the appellants for the offence under Section
302 read with Section 34 IPC and the sentence of life G
imprisonment each imposed on them are set aside and instead
they are convicted for the offence under Section 304 Part I read
with Section 34 IPC and sentenced to undergo seven years
rigorous imprisonment each.

B.B.B.                                  Appeal partly allowed.     H