Naimuddin vs State Of West Bengal

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.

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 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 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 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:

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

2. =" 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 6

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.

7

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.

8

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 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.

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