1

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 23rd 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) Briefly stated case of the prosecution is that on the

morning  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.