IN THE SUPREME COURT OF INDIA

CRIMINAL  APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 816 OF 2002

Naimuddin    .. Appellant

Versus

State of West Bengal  .. Respondent

J U D G M E N T  

Dalveer Bhandari, J.

1. 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’’).

2. 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

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.

3. 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.    

4. Brief facts which are necessary to dispose of the appeal  

are recapitulated as under:

5. 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  

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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.   

6. 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.

7. On  the  basis  of  the  FIR,  Sub  Inspector  Animesh  

Mazumdar P.W.13 started investigating the case and endorsed  

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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 charge-

sheet.   

8. 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.      

9. 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  

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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:

“1. One large haematoma on right side neck with  1” lacerated injury on the top of haematoma.   

2. ½” lacerated injury behind the left ear.

3. Fracture with dislocation of vertebral column  on neck.   

4. Fractured  skull  from  frontal  to  occipital  region.”

10. 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  

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effected by hard and blunt substance and this injury would be  

caused by forceful hit.

11. 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 originally charged.   

12. 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.    

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13. 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 him.

14. 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.

15. The witnesses have not only named the appellant, but  

also enumerated the specific role of hitting the deceased by  

bricks.

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16. 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.

17. 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.

18. 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.

19. 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  

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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.

20. Consequently, the appeal is partly allowed and disposed  

of.

.…..…….……………………..J.     (Dalveer Bhandari)

..….…….……………………..J.     (Dr. Mukundakam  Sharma)

New Delhi;

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November 6, 2009

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