Nazir Malita vs The State Of West Bengal

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL No(s). 807 OF 2019 (Arising out of SLP(Crl) No(s).8526 OF 2018)

NAZIR MALITA & ORS. Appellant(s)

VERSUS

THE STATE OF WEST BENGAL Respondent(s)

J U D G M E N T

BANUMATHI, J.:

Leave granted.

(2) This appeal arises out of judgment and order of the High

Court at Calcutta in C.R.A. No.59 of 2016 dated 23 rd July, 2018

(as corrected by 31st July, 2018) in and by which the High Court

affirmed the conviction of the appellants under Sections 323,

341, 304 read with 34 IPC. However, the High Court modified

the sentence of the appellants from life imprisonment to

fourteen years each and directed the appellants to pay fine of

Rs.10,000/- each with default clause. The High Court allowed

the appeal filed by the co-accused i.e. A-1 to A-5 and A-9 and

acquitted them.

(3) Signature Not Verified

Briefly stated case of the prosecution is that on the Digitally signed by MAHABIR SINGH Date: 2019.05.08

morning 16:50:52 IST Reason: of 12th August, 2010 at 10:00 a.m. there was an

altercation between the deceased-Morshed Malita (alias Morsed

Malita) and the accused-Hannan Mondal (since acquitted) over 2

the issue of the latter encroaching on a path which prevented

the bullock cart to move down the said road. Again, on the

same day i.e. 12th August, 2010 at 04:00-05:00 p.m. the

deceased-Morshed Malita had an altercation with accused-Hannan

Mondal over the same land dispute. On hearing the noise,

Innach Malita (PW-1), Asraf Malita (PW-4) and Rajabul Malita

(PW-5) rushed to the spot to the rescue their father-Morshed

Malita. At that time, accused party also came there and the

first appellant-Nazir Malita (A-6), second appellant-Hira

Malita (A-7) hit the deceased-Morshed Malita with a fala on the

front and back of his torso. The third appellant-Rashid Malita

(A-8) is alleged to have given a blow on the hand of the

deceased with ramda. Other accused are alleged to have

assaulted the deceased-Morshed Malita with lathi, ramda, rod

etc. The deceased-Morshed Malita was taken to the hospital on

the same day i.e. 12th August, 2010. Initially a case was

registered against the appellants and other accused under

Sections 341, 325 and 326 read with 34 IPC. On the next day

i.e. 13th August, 2010, the deceased-Morshed Malita succumbed to

injuries and the FIR registered against the appellants was

altered to under Section 302 IPC.

(4) Upon consideration of the oral evidence of eye-witness of

Innach Malita (PW-1), Asraf Malita (PW-4) and Rajabul Malita

(PW-5) and the injuries sustained by the deceased-Morshed

Malita, the Trial Court held the appellants and other accused

(A-1 to A-5 and A-9) guilty under Section 304 read with Section 3 34 IPC and convicted them for the said offence under Section

304 read with Section 34 and Sections 341 and 323 read with

Section 34 IPC. For the Offence under Section 304 read with

Section 34 IPC, the Trial Court sentenced the appellants and

other accused of life imprisonment and for the offence

punishable under Section 323 read with Section 34, the

appellants and other accused were sentenced to rigorous

imprisonment for one year.

(5) In appeal, the High Court has modified the sentence of

imprisonment of the appellants from life imprisonment to

fourteen years and allowed the appeal filed by the co-accused

i.e. A-1 to A-5 and A-9 and acquitted them, as aforesaid in

para (2).

(6) We have heard the arguments advanced by Mr. Subhasish

Bhowmick, learned counsel appearing for the appellants. We

have also heard the arguments of Mr. Avishkar Singhvi, learned

counsel appearing for the respondent-State, who has placed

reliance on the judgment of this Court in State of Punjab v.

Bawa Singh, (2015) 3 SCC 441 and submitted that no leniency

would be shown to the appellants. We have perused the impugned

judgment and the evidence/materials on record.

(7) By order dated 12th October, 2018, this Court has issued

notice only limited to the quantum of sentence.

(8) By perusal of the oral evidence and other materials on

record, it is seen that the occurrence happened in the evening 4

in continuation of the altercation that occurred in the

morning. At the time of the occurrence, the deceased-Morshed

Malita had an altercation with accused-Hannan Mondal (since

acquitted). On hearing the noise, both the prosecution

witnesses and also the accused-parties assembled and there was

a fight between both the parties. In the said fight, the

appellants-accused No.6, 7 and 8 attacked the deceased-Morshed

Malita with fala and ramda which are stated to be sharp-edged

weapon attached to the long stick.

(9) Considering the facts and circumstance of the case, in our

view, there was no premeditation or pre-plan to commit the

murder of the deceased-Morshed Malita. As rightly held by the

Trial Court as well as as by the High Court that there was no

premeditation and, therefore, they were rightly convicted under

Section 304 read with Section 34 IPC. The Trial Court as well

as the High Court, however, did not point out under which

“Part” of the Section 304 IPC the conviction of the appellants

are to be maintained.

(10) As pointed out earlier, the appellants are said to have

attacked the deceased-Morshed Malita with fala and ramda. The

deceased-Morshed Malita suffered cut injuries on the chest,

bruise on the lateral side of upper part of the left fore-arm,

sharp cut penetrating back of chest and left and right lungs

were punctured.

5

(11) Considering the facts and circumstances of the case and

that there was no premeditation, the conviction of the

appellants under Section 304 read with Section 34 IPC is

modified to Section 304 Part II IPC and the sentence of

imprisonment of fourteen years imposed upon the appellants is

reduced to ten years. The sentence of imprisonment imposed

upon the appellants under Sections 341, 323, 304 r/w 34 IPC

shall run concurrently. However, fine and default clause shall

remain intact.

(12) The appeal is partly allowed.

.........................J. (R. BANUMATHI)

.........................J. (S. ABDUL NAZEER) NEW DELHI, APRIL 30, 2019.