Holding

The conviction under section 302 read with section 34 IPC is unsustainable, but the appellant can be convicted under section 304 (Part II) read with section 34 IPC.

Summary

The case arose from a land dispute in which the victim Munshi Basiruddin, aged 78, was killed when bricks were thrown at him by the accused Naimuddin and Muslim Mian. The trial court convicted both under section 302 read with section 34 of the Indian Penal Code and sentenced them to life imprisonment. On appeal, the Supreme Court examined whether the injuries could have been caused by bricks and whether the accused possessed the requisite knowledge to commit murder. The Court held that the evidence did not support a conviction for murder under sections 302/34, but the act of throwing bricks at vital parts of an elderly victim demonstrated knowledge of likely fatal consequences, justifying conviction under section 304 (Part II) with section 34. Consequently, the conviction under section 302 was set aside and the appellant was sentenced to five years imprisonment. The appeal was therefore partly allowed.

Issues considered

Whether the injuries sustained by the deceased could have been caused by bricks
Whether the accused had the requisite knowledge and intention to commit murder under section 302 read with section 34 IPC
Whether the accused can be convicted under section 304 (Part II) read with section 34 IPC

Legislation cited

Indian Penal Code, 1860s. 149, s. 302, s. 304 (Part II), s. 34

Subjects

murderculpable homicide not amounting to murdersection 302 IPCsection 304 IPCsection 34 IPCbrick assaultforensic evidenceconviction alterationland dispute

Judgment

[2009) 15 (ADDL.) S.C.R. 609

NAIMUDDIN A
>- .1 v.
STATE OF WEST BENGAL
(Criminal Appeal No. 816 of 2002)
NOVEMBER, 6, 2009
B
[DALVEER BHANDARI AND
DR. MUKUNDAKAM SHARMA, JJ.]

~
Jr Penal Code, 1860 - s.302134 ands. 304 (Part 11)134 -
Death of victim on brick assault by accused - Conviction u/ c
s. 302134 and sentence of life imprisonment by courts below
- Justification of - Held: Bricks were thrown on vital parts of
the body of victim aged 78 years - Knowledge to commit
murder attributed to accused - Victim died instantaneously
after receiving brick injuries - On facts, conviction altered to D
s. 304 (Part-11)1149 with five years imprisonment.
.., According to the prosecution case, accused persons
assaulted the victim by bricks which resulted in the
instantaneous death of the victim. Sessions Judge
convicted the appellants uls. 302134 IPC and imposed life E
imprisonment. The other accused was acquitted of all the
charges. High Court upheld the order of conviction and
,,. sentence. Hence the appeal by the two accused.
t However, appellant 'M' died during pendency of appeal.
F
The question which arose for consideration in this
appeal is whether the injuries sustained by the deceased
could be caused by bricks.

Partly allowing the appeal, the Court
G
HELD: On analysis of the entire evidence on record,
... "' it is abundantly clear that the conviction of the appellant
cannot be sustained under sections 302/34 IPC. However,

609 H
610 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A it cannot be accepted that the appellant also cannot be
· convicted under section 304 (Part-II)/ 34 IPC. When the
bricks were thrown on the vital parts of the body of the
deceased who was an old man of 78 years, knowledge
to commit murder can definitely be attributed to the
s appellant. The deceased died instantaneously. after
r~.CJ!Ning the bric:l< inj.uFres;-Onconsideration of the
·totality o_f_!~e.. facts-and circumstances of the case, the
------ ----- erfds--of justice would be_ met if the conviction of the
appellant under sections 302/34 IPC is set aside and the
c appellant is convicted under sections 304 (Part-II)/ 149
IPC and sentenced to five years imprisonment. [Paras 19
and 20) [614-H; 615-A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 816 of 2002 .
.o
From the Judgment & Order dated 15.3.2002 of the High
Court of Calcutta in C.R.A. No. 183 of 1985.
'r' r
. S.B. Sanyal, Rauf Rahim, Faisal Farook, Yadunandan
Bansal, Rajiv Mehta for the Appellant.
E
Tara Chandra Sharma, Neelam Sharma for the
Respondent.

The Judgment of the Court was delivered by ...
~
,F
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 i.-
section 302 read with section 34 of the Indian Penal Code (for
G 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
H
NAIMUDDIN v. STATE OF WEST BENGAL 611
[DALVEER BHANDARI, J.]
Naimuddin and Muslim Mian. Both of them were convicted A
f 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 B
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.
Jr'
4. Brief facts which are necessary to dispose of the appeal
are recapitulated as under: c
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.1.R.) alleging that he along with his cousin
Toffazal Hossain had bastu under Dag No. 510 measuring 14 D
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,
E
his cousin agreed to sell the portion of land to 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.
F

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 G
Basiruddin and his two sons. The victim, Munshi Basiruddin
• v died on the spot being hit by the bricks thrown by the accused-
appellants Naimuddin and Muslim Mian. It was aliso
incorporated in the FIR that two sons of the victim also
sustained injuries by the bricks thrown by the other accused H
?-
612 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 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 t_he basis of the FIR, Sub Inspector Animesh
B Mazumdar P.W.13 started investigating the case and endorsed
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
c 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
D 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
E 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 t
F
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:
'
G i-
"1. One large haematoma on right side neck with 1"
lacerated injury on the top of haematoma.
...,, '
~
2. W' lacerated injury behind the left ear.
3. Fracture with dislocation of vertebral column on
H
NAIMUDDIN v. STATE OF WEST BENGAL 613
[DALVEER BHANDARI, J.)

neck. A

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 B
in normal circumstances. The doctor opined that injury no. 1
cannot lead to immediate death and this injury may be caused
· Ji- 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. C
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 effected by hard and blunt
substance and this injury would be caused by forceful hit.
D
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 E
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. F

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 G
accused party was unarmed. The appellant had no weapon with
him.

13. Mr. S.B. Sanyal, learned senior counsel appearing for
the appellant submitted that according to the testimony of H
614 SUPREME COURT REPORTS [2009] 15 (AODL.) S.C.R.

\
I
A 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.
B
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- 'fl ...
15 cubits which is equivalent to approximately 22 feet from the
c 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
D also enumerated the specific role of hitting the deceased by
bricks.
r
16. The short question which falls for consideration of this
Court is whether the injuries sustained by the deceased could
'"
E be caused by the bricks. According to the opinion of the doctor,
except injury no. 3, the other injeries could be caused by bricks.

17. Mr. Sanyal learned counsel for the appellant submitted
that the appellant was unarmed is not disputed. According to I(

him, merely throwing palm size bricks on the deceased should -t-
F not lead to the definite conclusion that the appellant had intention
to kill the deceased, therefore, according to him, appellant's
conviction under section 302/34 IPC is not sustainable.

18. Mr. Sanyal further submitted that the conviction of the
G 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. 7' ~l

/

19. We have heard the learned counsel for the parties at
length. On analysis of the entire evidence on record, it is
H ....
NAIMUDDIN v. STATE OF WEST BENGAL 615
[DALVEER BHANDARI, J.]
abundantly clear that the conviction of the appellant cannot be A
; J sustained under sections 302/34 IPC. However, we do not
agree with the second submission of Mr. Sanyal that the
appellant also cannot be convicted under section 304 Part 11/
34 IPC. In our considered view, when the bricks were thrown
on the vital parts of the body of the deceased who was an old 8
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.
, -Y On consideration of the totality of the facts and circumstances
of the case, the ends of justice would be met if the conviction
0
of the appellant under sections 302/34 IPC is set aside and
the appellant is convicted under sections 304 Part-111134 IPC
and sentenced to five years imprisonment.

20. Consequently, the appeal is partly allowed and
disposed of. D

N.J. Appeal partly allowed.

i