Vs. State of West Bengal  INSC 1705 (6 November 2009)
APPELLATE JURISDICTION CRIMINAL APPEAL NO. 816 OF 2002 Naimuddin .. Appellant
Versus State of West Bengal .. Respondent
This appeal is directed against the judgment of the Calcutta High
Court dated 15.3.2002, by which the conviction of the appellants Naimuddin and
Muslim Mian was confirmed by the High Court under section 302 read with section
34 of the Indian Penal Code (for short `IPC'').
Eight accused were tried by the Sessions Court under sections 148,
323/149 and 302/149 IPC. The learned Sessions Judge acquitted all the other
accused except the appellants Naimuddin and Muslim Mian. Both of them were 2
convicted under section 302 read with section 34 IPC and sentenced to life
imprisonment and to pay fine of Rs.5,000/- each and in default to further
suffer rigorous imprisonment for two years.
It may be pertinent to mention here that Muslim Mian died during
the pendency of the appeal and the appeal against him stands abated. In this
appeal, we are, therefore, concerned with the appellant Naimuddin only.
Brief facts which are necessary to dispose of the appeal are
recapitulated as under:
The informant P.W.1, Abdul Razzak came to Gajole Police Station on
27.2.1983 and lodged a First Information Report (for short, the F.I.R.)
alleging that he along with his cousin Toffazal Hossain had bastu under Dag No.
510 measuring 14 decimals. His cousin, Toffazal, without the prior consent of
the informant entered into an agreement with one Muslim Mian and Ali Asgar for
sale of 7 decimals of land out of the aforesaid property and when the informant
came to know all about it, he asked his cousin to sell the said portion of land
to him. At first, his cousin agreed to sell the portion of land to 3 him but
later on, at the instance of Muslim Mian, he refused to sell that portion of
land to him. Thereafter, the informant Abdul Razzak raised fencing on the
portion of land which was in his possession, His cousin raised his claim over
such portion of land and for this the informant protested to such claim.
On 27.2.1983, at about 11.00 a.m., the accused along with others
started demolishing the fencing of the land in possession of the informant, to
which the informant along with some others protested. It was protested by the
victim Munshi Basiruddin and his two sons. The victim, Munshi Basiruddin died
on the spot being hit by the bricks thrown by the accused-appellants Naimuddin and
Muslim Mian. It was also incorporated in the FIR that two sons of the victim
also sustained injuries by the bricks thrown by the other accused persons. The
accused fled away from the spot and the informant P.W.1 Abdul Razzak went to
the police station and lodged the FIR.
On the basis of the FIR, Sub Inspector Animesh Mazumdar P.W.13
started investigating the case and endorsed 4 the same to K. S. Das, P.W.14,
who at the relevant time was attached to Gajole Police Station for the purpose
of investigation. P.W.14 examined the witnesses and recorded their statements.
He tried to apprehend the accused persons, named in the FIR. P.W.14 obtained
the post-mortem report and on completion of the investigation submitted a
The learned Sessions Judge charged eight accused persons under
sections 148, 323 read with 149 and 302 read with 149 IPC. The learned Sessions
Judge acquitted all other accused of all charges, but convicted the appellants
Naimuddin and Muslim Mian under section 302 read with 34 IPC on a specific
finding that both these accused participated in the commission of the offence,
namely, in launching assault on the victim by bricks which caused the
instantaneous death of the victim on the spot. The High Court upheld the
conviction and sentence of the appellants.
The respondent-State in order to establish the prosecution case
examined 14 witnesses. As far as the appellant is concerned, the allegation
against him is of killing 5 the deceased by throwing bricks on him. Dr. J.
Mandal, P.W.11, who conducted the post-mortem on the dead body of Munshi
Basiruddin aged about 78 years and found the following injuries:
One large haematoma on right side neck with 1" lacerated injury on the top
=" lacerated injury behind the left ear.
Fracture with dislocation of vertebral column on neck.
Fractured skull from frontal to occipital region."
The doctor opined that the injuries may be caused by a hard and
blunt substance like brick and that the injuries were sufficient to cause death
in the ordinary course of nature and in normal circumstances. The doctor opined
that injury no. 1 cannot lead to immediate death and this injury may be caused
by a fall on some hard substance. He further opined that injury no. 2 may have
been inflicted from behind or by side way fall and that this injury may not
cause death immediately. Injury no. 3 may be caused by forceful torsion
twisting of the neck by a powerful man or by a blow with a hard and blunt
substance. Injury no. 4 on the skull could be 6 effected by hard and blunt
substance and this injury would be caused by forceful hit.
In the instant case, the incident had taken place at 11.00 a.m. on
27.2.1983. The FIR was lodged on the same day at about 15.05 hrs. P.Ws. 1, 4,
5, 6, 8, 9 & 10 are alleged to be the eye witnesses. According to the
appellant, P.W.6 was the only independent witness. Out of the eight accused
tried by the Sessions Court, six accused were acquitted of all charges. The
learned Sessions Judge, however, convicted the appellants Naimuddin and Muslim
Mian under sections 302 read with 34 IPC. There was no appeal filed by the
State in the High Court against the acquittal of the remaining six accused
The Trial Court, while convicting the appellant and Muslim Mian
and acquitting the other six accused, observed that there is no evidence that
these accused went to the place of occurrence. It is clear from the evidence of
P.W.1 that the accused party was unarmed. The appellant had no weapon with him.
Mr. S.B. Sanyal, learned senior counsel appearing for the
appellant submitted that according to the testimony of Tafijuddin, P.W.6, the
accused party was at a distance of 5-7 cubits which is equivalent to about 8-11
feet. When the accused were unarmed and had only thrown palm size bricks, then
neither the intention nor the knowledge to commit murder can be attributed to
It may be pertinent to mention that different witnesses have
mentioned different distances from which the bricks were thrown. According to
Tafazzal Hoque, P.W.8, who is the son of the deceased, the appellant was
standing at a distance of 10-15 cubits which is equivalent to approximately 22
feet from the place of the incident. According to the appellant, when bricks are
thrown from such a distance, neither the intention nor the knowledge to commit
murder can be attributed to the appellant.
The witnesses have not only named the appellant, but also
enumerated the specific role of hitting the deceased by bricks.
The short question which falls for consideration of this Court is
whether the injuries sustained by the deceased could be caused by the bricks.
According to the opinion of the doctor, except injury no. 3, the other injuries
could be caused by bricks.
Mr. Sanyal learned counsel for the appellant submitted that the
appellant was unarmed is not disputed. According to him, merely throwing palm
size bricks on the deceased should not lead to the definite conclusion that the
appellant had intention to kill the deceased, therefore, according to him,
appellant's conviction under section 302/149 IPC is not sustainable.
Mr. Sanyal further submitted that the conviction of the appellant
also cannot be recorded even under section 304 Part-II IPC because even the
knowledge to commit murder cannot be attributed to him in the facts and
circumstances of this case.
We have heard the learned counsel for the parties at length. On
analysis of the entire evidence on record, it is abundantly clear that the
conviction of the appellant cannot 9 be sustained under sections 302/149 IPC.
However, we do not agree with the second submission of Mr. Sanyal that the
appellant also cannot be convicted under section 304 Part II/149 IPC. In our
considered view, when the bricks were thrown on the vital parts of the body of
the deceased who was an old man of 78 years, in that event, knowledge to commit
murder can definitely be attributed to the appellant. In this case, the
deceased died instantaneously after receiving the brick injuries. On
consideration of the totality of the facts and circumstances of the case, the
ends of justice would be met if the conviction of the appellant under sections
302/149 IPC is set aside and the appellant is convicted under sections 304
Part-II/149 IPC and sentenced to five years imprisonment.
Consequently, the appeal is partly allowed and disposed of.
.......................................J. (Dalveer Bhandari)
.......................................J. (Dr. Mukundakam Sharma)