Dilip Shaw .@ Sanatan vs The State Of West Bengal on 2 March, 2020


Supreme Court of India

Dilip Shaw .@ Sanatan vs The State Of West Bengal on 2 March, 2020

Author: Deepak Gupta

Bench: Deepak Gupta, Aniruddha Bose

                                                 1


                                                            [Non- Reportable ]

                                  IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION

                                 CRIMINAL APPEAL NO. 1431 of 2013

                         DILIP SHAW @ SANATAN & ANR.      .…….APPELLANTS

                                              VERSUS

                         THE STATE OF WEST BENGAL
                         AND ORS.                        ……...RESPONDENTS


                                             WITH
                                 CRIMINAL APPEAL NO. 1430 OF 2013


                                           JUDGMENT

ANIRUDDHA BOSE, J.

Both these appeals are directed against a judgment of

conviction delivered by a Division Bench of the High Court at

Calcutta on 5th February, 2009 finding the appellants guilty of

offences under Part-I of Section 304 read with Section 149 of the

Indian Penal Code as also under Section 148 thereof. The
Signature Not Verified

Digitally signed by
RAJNI MUKHI
Date: 2020.03.03
16:19:54 IST
Reason:

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appellants in the Criminal Appeal No.1431 of 2013 are Dilip Shaw

@ Sanatan and Uttam Shaw. In Criminal Appeal No. 1430/2013,

there are three appellants, Paresh Shaw @ Parash, Gopal Prosad

Sarkar @ Phatik and Mohd. Kayum Khan. Paresh and Gopal have

been found guilty, in addition to the aforesaid provisions of the

Code, under Section 9-B (2) of the Explosives Act, 1884. The

Division Bench reversed the judgment of acquittal passed on 29 th

April, 1987 by the Additional Sessions Judge, First Court, Howrah

in Sessions Trial Case No. XXI (4) of 1985. The appellants have

been sentenced to undergo rigorous imprisonment for 10 years and

pay fine of Rs. 5000/- each. In default of payment of fine, they have

been directed to suffer further rigorous imprisonment for a period of

one year in the judgment under appeal. The High Court did not

award any sentence for offences other than part I of Section 304

read with Section 149 of the Code, considering award of said

punishment as the rest were lesser offences. At the time the

petitions for Special Leave to Appeal was instituted, one of the main

grounds relied upon by the petitioners in support of the appeal was
3

that the copy of the judgment of the Division Bench was not

available. But the copy of the judgment of the Division Bench has

been annexed to the counter-affidavit filed by the State marked

annexure “R-9.” The appellants had also subsequently been supplied

the certified copy of the judgment impugned. Because of this

reason, applications were taken out by the appellants in both the

appeals for raising additional grounds in support of the respective

criminal appeals. In this judgment, we have considered these

additional grounds. Arguments at length have been advanced before

us on behalf of the appellants on the basis of the judgment under

appeal.

2. The origin of the case lies in an incident that took place on 25th

March, 1981, resulting in death of one Gurdev Singh and injuries to

several members of his family. It has been recorded in the judgment

of the Division Bench that there was past enmity between the family

members of the deceased and his assailants. On behalf of the

appellants, it was submitted that there was no basis for referring to
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past enmity by the High Court. From the evidence of a prosecution

witness Jagar Singh (P.W.8), we find that appellants Paresh and

Gopal were witnesses in a case in which said Jagar was an accused.

It has been stated by Jagar in his cross-examination that in the said

case, allegation was that Jagar and his brother had assaulted

Nageswar. This fact, in our view, could lead to the inference of there

being past enmity between the respective families.

3. Prosecution version of the case is that in the morning, at about

7.30 A.M. on 25th March 1981, a boy had come to the residence of

Sarban Singh (P.W. 6) and reported that someone had come to see

him. Sarban then went out of his residence and met the visitor

nearby. That visitor happens to be one Suresh Rampuria, who was

also a prosecution witness (P.W.5). He was, however, declared

hostile. Suresh had some business relationship with a member of the

family of the deceased. While these two individuals were talking to

each other, around 14/15 persons surrounded Sarban and started

assaulting him. The location of the place of occurrence was
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Belilious Road in Howrah. The residence of the family of the

victims is on a lane adjacent to Belilious Road, though the street

address of the victims’ residence is 326/1, Belilious Road. The area

where victims reside is known as “Vistipara”. In the Trial Court’s

judgment, the distance of the victims’ house has been recorded to be

about 40-45 ft. from the main road (i.e. Belilious Road). On hearing

Sarban’s cries for help, his family members rushed to the location

and rescued him. Sarban (P.W. 6) deposed that Hadis, one of the

accused persons tried to assault him with a knife, but on

intervention of his brother Jagar (P.W.8), he was saved as the P.W.8

snatched away the knife from Hadis. It also forms part of the

complaint of the victims’ family that Kayum had snatched away

Sarban’s wrist watch at that time. When Sarban was returning to his

home with rest of the family members, a bomb was thrown from the

rear side which landed in front of Bimla. Said Bimla is wife of Jagar

(P.W.8) and has deposed as the P.W. No. 3 at the trial. A second

bomb was also hurled at the group comprising of the family

members of the deceased. That bomb exploded behind Gurdev
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Singh and caused injuries to him at that point of time. He had fallen

down. Four other family members of Gurdev were also injured.

They were Bimla (P.W.3), Jaswinder (P.W.4), Sarban (P.W.6) and

Jagar (P.W.8). On hearing the sound of explosion, one Sakaldeo

Singh (P.W.13), a head constable who was at a nearby police outpost

reached the place of occurrence with some other police personnel.

He found remnants of the bomb on the ground as also drops of

blood at the place of occurrence. From deposition of Niranjan Dey

(P.W.22), who at the material time was a Sub-Inspector with

Howrah Police Station, it transpires that communication was

received by the police station from the said police outpost and he

had rushed to the spot with police force. He reached there at about 8

A.M. He found six persons injured from bomb explosion. He

arranged for their removal to Howrah General Hospital and

recorded the statement of Piyara Singh (P.W.1). The First

Information Report was registered on the basis of statement given

by said Piyara Singh, a member of the same family. An ambulance

was pressed into service by the police and the injured persons were
7

taken to Howrah General Hospital for treatment. Among those

injured, Gurdev was referred to S.S.K.M. Hospital, Kolkata. Said

Gurdev succumbed to his injuries on the next day i.e. on 26 th March,

1981. Another police witness, Kashiswar Majumdar (P.W.14) in his

deposition has broadly given the same version about the location,

sound of explosion and the remnants of bombs (he described them

as splinters).

4. Gurdev’s statement made to the Medical Officer of Howrah

General Hospital, Dr. Subrata Ghosh (PW-9) was one of the factors

considered by the High Court leading to conviction of the

appellants. The Division Bench treated the statement of Gurdev as

dying declaration. In his deposition, the PW-9 stated that Gurdev

had told him that he was assaulted by Nageswar Sharma that

morning as a result of which he sustained the injuries. Apart from

the five appellants, the statement of Piyara Singh (P.W.1), which

formed the basis of the First Information Report, also named

Nageswar Sharma, Bhutnath, Uttam, Bhagat and Hadis as the
8

persons and 5 or 6 other individuals as assailants of Sarban.

Charging of two bombs has also been attributed to them in the said

statement and as per that statement, the said explosion had caused

injury to Piyara’s brother and the said brother’s wife as well as 5 or

6 other persons. All the accused persons were charged under

Sections 148, 302/149 and 324/149 of the Code. In addition,

Paresh, Gopal and Nageswar were charged under Section 9-B (2) of

the Explosives Act, 1884. The prosecution had altogether examined

22 witnesses. Among them, PW-1, PW-2, PW-3, PW-4, PW-5, PW-

6, PW-7 and PW-8 were examined as witnesses of fact. They

deposed as eye witnesses. PW-10 Dr. Dipen Kumar Biswas was the

autopsy surgeon. PW-5, Suresh Kumar Rampuria, who was talking

to Sarban Singh at the time of occurrence of the incident was

declared hostile. Suresh and Tirath Dev Singh (P.W.7) who also

deposed as witnesses of fact were not family members of the victim.

In his examination-in-chief, P.W.7 had narrated the facts which

broadly corroborated the prosecution version. But the P.W.7 did not

name any of the appellants as the assailants or perpetrators of the
9

crime. He, however, had identified Nageswar Sharma in Test

Identification Parade and again identified him in course of his

deposition as the person who hurled the bomb.

5. All the other witnesses of fact were related persons. They had,

in their depositions narrated presence of the nine individuals at the

place of occurrence. They have been arraigned as accused persons.

One of them, Hadis was not traceable. Trial was conducted in

respect of rest of the accused. The depositions of prosecution

witnesses were more or less uniform so far as narrating the factual

basis of the prosecution case is concerned. The prosecution version

is that though three among the accused were seen with bombs, two

bombs were hurled, first by Paresh, the first appellant in Criminal

Appeal No. 1430 of 2013 and next by another accused, Nageswar

Sharma. Nageswar has since passed away. It was the bomb hurled

by Nageswar which caused injuries to Gurdev Singh, to which he

succumbed after being referred to the S.S.K.M Hospital from the

Howrah General Hospital. It was in Howrah General Hospital, he
10

had made statements to P.W. 9, Dr. Subrato Ghosh, which were

treated as dying declaration. P.W.9 has deposed that he found

Gurdev Singh in extremely shocked stage and prognosis was grave.

Gurdev had made statement to him that he was assaulted by

Nageswar Sharma in the morning “with the help of bomb”. It

transpires from his deposition that the statement of Gurdev as

recorded by him was not in the language in which the victim had

made the statement. This factor, however, by itself does not lower

the quality of evidence of P.W.9. He is a neutral person and, in his

deposition, he has stuck to the statement as recorded by him. The

same witness described the injuries as one which might have had

happened from the explosion of a bomb. The autopsy surgeon, P.W.

10 in his examination-in-chief stated that the death of Gurdev was

due to the homicidal injuries referred to by him. These injuries

were ante-mortem in nature and all the injuries were the results of

bomb explosion. P.W.9 has confirmed treating other injured persons,

being Jasbindar Singh (P.W.4), Bimla Devi (P.W.3), Sarban Singh

(P.W.6) and Jagar Singh (P.W.8).

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6. The Trial Court acquitted all the accused persons on the basis of

certain discrepancies in the eye-witness accounts of the incident.

The Trial Court did not find evidence of P.W.9 on the aspect of

recording dying declaration to be reliable enough warranting

conviction on that basis. We have already expressed our opinion on

this aspect of the controversy. The judgment referred to the boy who

had come to the house of the victim to call Sarban. The fact that he

was not examined was held against the prosecution. The Trial Court

also disbelieved the prosecution story about hurling of bombs to

assault the victims on the ground that if assault to cause death was

the object of the accused persons then they would have had indulged

in assault with bombs at the first instance when Sarban was being

rescued. Inference of the Trial Court was that there seemed to be no

reason for waiting with the bombs till return of the family members

of Sarban. There was evidence to the effect that the first bomb had

landed in front of Bimla Devi. In the opinion of the Trial Court, in

such a situation it would have been natural that her wearing apparels

would have been ignited or borne signs of burning. There was no
12

evidence that her wearing apparels had been damaged. The Trial

Court disbelieved the prosecution version as to who had hurled the

bomb. It was observed by the Trial Court that when the family

members of the victim were returning home, the bombs were

charged from their rear side, and reasoning of the Trial Court was

that it was not possible for them to find out who had hurled the

bomb.

7. Before the High Court, the learned counsel for the accused did not

defend the judgment of the Trial Court on fact. It has been recorded in

the judgment of the High Court: –

“Mr. Bagchi, the learned Advocate
appearing in support of the respondents did
not seek to defend the judgment. He
restricted his submission only as regards the
degree of offence and the punishment
which may be inflicted in this case. He
submitted that it cannot be said that the
intention of the accused persons was to kill
either Gurdev or any was the member of his
family. It cannot also be said that Gurdev
was the targeted victim nor can it be said
that Sarban was the targeted victim.

According to him the accused persons may
have intended to teach a lesson to the
13

members of the complainant party but there
was no intention to kill. The bombs were
hurled may be with the knowledge that the
same might cause death but not with the
intention to cause death because no one was
not the targeted victim. He, therefore,
submitted that the conviction in this case
can at best be under Part II of Section 304
read with Section 149 I.P.C.”

The High Court, however, on the basis of evidence negated that

defence and inter-alia, observed and held: –

“There is evidence before us to show that
there was a family feud between the
members of the complainant party and the
accused Nageswar. If the accused persons,
who had indulged into the act of rioting,
really had intended to kill someone of the
family of the party of the complainant then
Sarban would have been killed at the first
instance. Even according to Sarban at that
time some 14/15 persons had surrounded
him and began to assault him with fists,
blows, kicks etc. All the accused persons
were amongst those persons. When they
began to assault him, he cried for help. P.W.
2 has deposed that the accused Nageswar,
Gopal and Parash were armed with bombs
and Hadis was armed with a knife. The
knife of Hadis was snatched by Jagar Singh
and thrown away in the lane. Even then the
bomb was not charged. The bombs were
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charged only when the members of the
party of the complainant were returning
home. The accused persons at that stage
may have felt the sting of defeat. This
feeling at that stage must have provoked
them to throw the bombs regardless of
whatever might happen.

We, therefore, are of the view that it is not
correct to say that the case does not at all
come within any of the exceptions of
Section 300 IPC. We cannot also agree with
Mr. Bagchi that the case would come within
Part II of Section 304 of the IPC. The
bombs were thrown with the intention to
cause such bodily injury as was likely to
cause death.

The accused persons are therefore convicted
under Part I of Section 304 IPC read with
Section 149 of the IPC. They are also
convicted under section 148 IPC. Three
persons, namely, Nageswar, Parash and
Gopal are also found guilty under section
9B(2)
of the Indian Explosives Act.
However, considering the fact that we have
convicted them under Section 304 Part I of
the IPC read with Section 149 IPC, we are
not inclined to award any separate
punishment for the rest of the offences.”

8. Admitted position is that among the appellants before us, it was

only Paresh who had hurled the bomb as per prosecution version. The
15

witnesses of fact, barring P.W.No.5 and P.W.No.7, have all stated that

the appellants were present at the place of occurrence and were

involved in initial assault of Sarban. PW-1, on the basis of whose

statement the FIR was registered, has named Dilip, Gopal and Kayum

specifically and has also stated presence of four or five others who

had assaulted Sarban. P.W.2 has named Paresh, Dilip, Uttam and

Kayum. P.W.6 has specifically named Dilip and Paresh whereas

PW.8-Jagar Singh has named Paresh and Gopal. There is no major

discrepancy or contradiction in the depositions of prosecution

witnesses. There are some variations in prosecution witnesses’

version as regards total number of assailants who were present at the

place of occurrence, but it is not expected that these witnesses would

count numbers in a moment when a group of persons started assault

on Sarban. The question which we need to address now is whether

finding of guilt against the appellant under Part I of Section 304 read

with Sections 148 and 149 of the Indian Penal Code was justified or

not. To get the appellants outside the purview of Section 149 of the

Code, reliance on their behalf has been placed on the decisions of this
16

Court in the cases of Radha Mohan Singh v. State of U.P. (2006) 2

SCC 450, Sukhbir Singh v. State of Haryana (2002) 3 SCC 327

and Bal Mukund Sharma v. State of Bihar (2019) 5 SCC 469.

These are all authorities involving cases of assault by several persons.

The Court found in these decisions that common object of all the

accused persons of the unlawful assembly to commit murder was not

established. It was not proved that the members of the unlawful

assembly knew that murder was likely to be committed in prosecution

of the common object of the assembly. In the case of Sukhbir Singh

(supra) it was held:-

“14. The prosecution in the instant case could not
specifically refer to any of the objects for which
the accused are alleged to have formed the
assembly. It appears, from the circumstances of
the case, that after altercation over the splashing of
mud on his person and receiving two slaps on his
face from the complainant party, Sukhbir Singh
declared to teach the complainant party, a lesson
and went home. Immediately thereafter he along
with others came on the spot and as held by the
High Court wanted to remove the obstruction
caused in the flow of water. As the common object
of the assembly is not discernible, it can, at the
most, be held that Sukhbir Singh intended to cause
17

the fatal blow to the deceased and the other
accused accompanied him for the purpose of
removing the obstructions or at the most for
teaching a lesson to Lachhman and others. At no
point of time any of the accused persons
threatened or otherwise reflected their intention to
commit the murder of the deceased. Merely
because the other accused persons were
accompanying him when the fatal blows were
caused by Sukhbir Singh to the deceased, cannot
prove the existence of the common object
specifically in the absence of any evidence of the
prosecution in that behalf. The members of the
unlawful assembly can be held liable under
Section 149 IPC if it is shown that they knew
before hand that the offence actually committed
was likely to be committed in prosecution of the
common object. It is true that the common object
does not require prior concern and a common
meeting of mind before the attack. It can develop
even on spot but the sharing of such an object by
all the accused must be shown to be in existence at
any time before the actual occurrence.”

9. The decisions of this Court in the cases of Padam Singh v.

State of U.P. (2001) SCC 621 and Sampat Babso Kale & Ors. v.

State of Maharashtra (2019) 4 SCC 739 were relied upon in support

of the appellants’ submissions that in an appeal against acquittal the

High Court ought not to lightly interfere with the decision of the Trial
18

Court, which has recorded the evidence and observed the demeanour

of witnesses. The ratio of these decisions are binding on us, but in our

opinion they are not applicable in the facts of this case. The Trial

Court’s judgment is largely inferential. So far as prosecution

witnesses are concerned, they uniformly narrated the sequence of

events. There has been no major contradiction in the depositions of

the prosecution witnesses. In the case of Sampat Babso Kale

(supra), the victim who made the dying declaration had 98% burn

injury. There was evidence of the doctor in that case to the effect that

if there was 98% burn injury, shock of the victim could lead to

delusion. In this case, the P.W.9 deposed, in his cross-examination,

that generally if general condition of a patient was low, he was

extremely shocked and his blood pressure was low, with the injuries

the nature of which Gurdev had suffered, he would not be in normal

mental understanding. He however found the patient to be conscious,

but his general consciousness (G.C) to be low. He also identified the

injuries to be of such nature which may happen from explosion of a

bomb. Thus, we do not find any reason to discard the evidence of
19

P.W.9. Moreover, what has been stated as “dying declaration” by

deceased Gurdev stands corroborated by several other witnesses.

10. The provisions of Section 304 Part I was invoked by the

Division Bench mainly on account of death of Gurdev. Prior to

hurling of the two bombs at the family members of Sarban, one of

which caused injuries to Gurdev, there was assault on Sarban in which

involvement of all the accused persons have been established by the

prosecution through cogent and reliable evidence. But death of

Gurdev resulted from bomb injury at a time when the family members

of the deceased were returning from the place where assault on

Sarban occurred, close to their residence. The distance, however,

between the two locations was very short.

11. In our opinion, the fact that there was short time gap and little

deviation in describing the exact place of occurrence by themselves

cannot detach the involvement of the persons who had hurled the

bombs from rest of the accused persons altogether, who were part of

the same group. They were harbouring common object, which fact
20

emerges from various factors including having assembled therewith

weapons of assault and their participation in the acts of assault. These

weapons were capable of causing death. The act of hurling bombs was

in very close proximity in time to the act of assault on Sarban. The

two incidents formed part of same chain of events assaults in this

case. There was enough material to include the five appellants among

the set of persons who had common object to assault. In hurling

bombs, their target appears to have had been random but directed at

members of the family of Gurdev. In that context, the High Court was

right in not speculating upon the reason as to why they had gathered

early in the morning at the place of occurrence. They were present

there with lethal weapons which obviously reflected their motive.

This was followed by assault on various members of the Singh family,

which resulted in death of Gurdev and caused injuries on several

others. The Trial Court’s reasonings were fallacious and the High

Court had rightly interfered in appeal. The ratio of the decisions in the

cases of Padam Singh (supra) and Sampat Babso Kale (supra) do

not aid the appellants.

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12. We are also of the opinion that there was common object to

assault. We have already dealt with the aspect of common object in

commission of the offences. In the context of evidence available in

this case, the ratio of the judgments of this Court in the cases of

Radha Mohan Singh (supra), Sukhbir Singh (Supra) and Bal

Mukund Sharma (supra) have no application. The evidences of

prosecution witnesses of fact, who were eye witnesses, is uniform to

the effect that all the appellants had participated in acts of assault of

Sarban initially and subsequently other members of his family.

13. From the manner in which assault took place, we, however, are

of the opinion that no intention could be attributed to the appellants to

cause death of Gurdev. The bombs were charged from the rear of the

group comprising of members of the Singh family but these were not

targeted at anyone specific. The assaults were random, barring that on

Sarban at the initial stage. We do not think in the given facts the

appellants could be held guilty of Part I of Section 304 of the Code

read with Section 149 thereof. We accordingly modify the conviction
22

imposed on the appellants to Part II of Section 304 of the Code read

with Section 149 thereof. We also modify the sentence of the

appellants and direct them to undergo rigorous imprisonment for five

years each under Part II of Section 304 read with Section 149 of the

Code. We however enhance the quantum of fine to Rs.50,000/-

(Rupees Fifty Thousand) in respect of each of the appellants. The

amount of fine shall be paid to the legal representatives of deceased

Gurdev Singh as compensation. We also reduce the term of default

punishment to six months’ rigorous imprisonment instead of one year

the High Court directed the appellants or any one of them to undergo

if they do not make payment of fine. While modifying the term of

imprisonment, we have taken into consideration the fact that the

offences were committed about four decades back and the appellants

at present are of advanced age. We find no reason to interfere with

the finding of guilt by the High Court under Section 148 of the Code

in respect of all the appellants and in so far as appellant Nos.1 and 2

in Criminal Appeal No.1430/2013 are concerned, under Section 9B

(2) of the Explosives Act 1884. We approve the reasons given by the
23

High Court for not awarding separate punishments to the said

appellants under the two aforesaid provisions for commission of

offences under those sections.

14. The appeals are partly allowed in the above terms. Bail bonds

of the appellants shall stand cancelled and the appellants are directed

to surrender before the Trial Court within six weeks. In the event of

their failure to surrender, the Trial Court shall take them into custody

so that they serve out the sentence as directed. Detention, if any,

already undergone by the appellants in the same case will be adjusted

while computing the period of sentence.

…..………………………….J.

(Deepak Gupta)

……………..……………….J.

(Aniruddha Bose)
New Delhi,
Dated: March 02, 2020.



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