LexNAIMUDDIN versus STATE OF WEST BENGAL
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[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 E convicted the appellants uls. 302134 IPC and imposed life 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. . S.B. Sanyal, Rauf Rahim, Faisal Farook, Yadunandan E Bansal, Rajiv Mehta for the Appellant. 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 G 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 H 'r' r ... ~ i.- "! .. 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 tha
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