Calcutta High Court (Appellete Side)
Prosenjit Mollick @ Dustu Mollick vs State Of West Bengal on 10 July, 2019
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Form No. J (1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
AND
The Hon'ble Justice Manojit Mandal
CRA No.55 of 2016
PROSENJIT MOLLICK @ DUSTU MOLLICK
. . .APPELLANT
VERSUS
STATE OF WEST BENGAL
. . .RESPONDENT
For the Appellant : Mr. Prabir Mitra, Adv.
Mr. Pinak Kumar Mitra, Adv.
Mr. Somnath Majumdar, Adv.
Ms. Debolina Das, Adv.
For the State/Respondent : Mr. Abhra Mukherjee, Adv.
Mr. Dipankar Mahata, Adv.
Heard on : 9.7.2019 & 10.7.2019.
Judgment on : 10.7.2019
Joymalya Bagchi, J.:
Appeal is directed against the judgment and order dated 16.12.2015 and 17.12.2015 passed by the learned Additional Sessions Judge, Nadia, 2nd Court, Krishnagar, in Sessions Trial No.III(II) of 2015 corresponding to Sessions Case No.4(02) of 2015 convicting the appellant for commission of offence punishable under Section 302 of the Indian Penal Code and sentencing them to suffer imprisonment for life and to pay a fine of Rs.50,000/-, in default, to suffer rigorous imprisonment for a further period of one year.
The prosecution case, as alleged against the appellants, is to the effect that on 24.10.2014 at about 08.30 p.m. people were dancing in front of a Kali puja pandal. At that time, the appellant along with one Somnath Mallick and Subir 2 Biswas came to the spot. The appellant had a socket bomb in his hand. Shibu Pal (P.W.3) requested him to leave the place. Consequentially the appellant got engaged and abused him with filthy language. Thereafter, he threw the bomb resulting in severe bomb blast injuries on Uttam Sikder @ Uttam master, Shibu Pal (P.W.3) and Biswanath Mondal (P.W.13). Shibu and Biswanath were treated at Saktinagar Hospital and discharged while Uttam succumbed to his injuries. Over the incident uncle of the deceased, Madanmohan Mondal (P.W.1) lodged written complaint resulting in registration of Kotwali P.S. case No.864/14 dated 24.10.2014 under section 302/34 of I.P.C. Prior to the registration of F.I.R., B.K. Paul (P.W.14), officer-in-charge of Gangnapur P.S. had apprehended the appellant and his associates on a motorcycle and such arrest was also diarized.
In conclusion of investigation, charge-sheet was filed against the accused persons and the case was committed to the court of sessions and transferred to the Court of learned Additional Sessions Judge, Nadia, 2nd Court, Krishnagar for trial and disposal.
Charges were framed against the accused persons under section 302/34 of the Indian Penal Code, under section 307/34 of the Indian Penal Code and under section 9(B) of the Indian Explosive Act.
In the course of trial, the prosecution examined 20 witnesses and exhibited a number of documents. The defence of the accused persons is of innocence and false implication in the instant case.
In conclusion of trial, the trial judge by the impugned judgment and order convicted and sentenced the appellant, as aforesaid. By the selfsame judgment and order co-accused Somnath Mallick and Subir Biswas were acquitted of the charges levelled against them.
Mr. Prabir Mitra, learned counsel with Mr. Majumdar, Mr. Mitra and Mr. Das learned counsels for the appellant argued that the prosecution case has not been proved beyond doubt as the charge under section 9(B) of Indian Explosive Act has not been established. He further submitted that the manner in which the incident occurred as per the prosecution witnesses is improbabilized since the appellant 3 was apprehended from a different place and the injuries on his hand had not been explained by the prosecution case. He also argued that it would be evident from the evidence of Dr. Falguni Nag (P.W.11), Medical Officer attached to Nadia District Hospital that in the injury report of P.W.3 it was noted that he had suffered such injuries in the course of road traffic accident. In the alternative, it is argued that the appellant had no intention to commit the murder of the victim and had thrown the bomb on the concrete road resulting in injuries on the deceased. Hence, conviction under section 302 of I.P.C. is untenable in law and ought to be scaled down to section 304 of I. P. C. He relied on Sunil Kumar vs. State of W.B., 2015(3) Crimes 132(Cal.) in support of his contention.
On the other hand, Mr. Mukherjee learned counsel with Mr. Mahata learned counsel for the State argued that the prosecution has been establised beyond doubt through the deposition of the injured witness P.W.3 which is corroborated by other witnesses as well as the evidence of the medical officers. Bed head tickets of the victims being Exts. 4, 5 and 6 clearly show that the deceased as well as injured persons had suffered injuries due to bomb blast. Soon after, the incident, the appellant was apprehended fleeing from the spot on a motorcycle. Due to the bomblast, the appeallant also suffered injuries on his hand and there was smell of bomb ingredients was coming from his palm. These circumstances clearly establish the prosecution case beyond doubt. Hence, the appeal may be dismissed.
Shibupada Pal (P.W.3) is the most vital witness in this case. He and Biswanath Mondal (P.W.13) were injured along with the deceased in the course of same transaction. P.W.3 deposed on the fateful night they were celebrating in front of the Kali Puja Pandal. Around 8.00-8.30 p.m. the appellant came to the spot with a bomb in his hand. P.W. 3 requested him to go home. Thereupon the appellant abused him and hurled bomb. Uttam Master who was present at the spot was injured. He and Biswanath(P.W.13) also suffered injuries. They were treated at Shaktinagar Hospital, Nadia and discharged. His statement was recorded under 161 Cr.P.C.
4
Evidence of P.W.3 is corroborated by uncle of the deceased (P.W.1) who is also the de facto complainant in the instant case. He proved the written complaint (Exbt.1). He also signed on the inquest report.
Biswanath Mondal (P.W.13), the other injured witness deposed that he was going down Asannagar road to meet his son who was returning from Calcutta. At that time, when he crossed the puja mandap someone hurled bomb from rear. He fell down and became unconscious.
Evidence of the aforesaid witnesses has been corroborated by other witnesses, namely, P.W.s 4, 5, 6, 8 and 19.
Dr. Nabarun Banerjee (P.W.10) and Dr. Falguni Nag (P.W.11) are the medical officers attached to the Nadia District Hospital who treated the injured witnesses and also declared Uttam Sikder @ Uttam Master dead.
P.W.10 deposed that he examined Biswanath Mondal (P.W.13). He found small cut injury on the scalp which was repaired. He prescribed medicine and advised C.T. scan on the patient. He proved the bed head ticket (Exbt.4).
P.W.11 examined Shibu Pal (P.W.3). He found bomb blast injury on the witness. He proved the bed head ticket (Exbt.6). He also deposed that he examined Uttam Sikder @ Master who was in a gasping condition. Subsequently, the patient died. He proved his bed head ticket (Exbt.5). In cross-examination, he stated in the report of Shibu Pal it was noted that the patient had suffered injuries from road traffic accident.
Ajit Kr. Biswas (P.W.12) is the post-mortem doctor who found the following injuries on the body of the victim:-
"1. Multiple scattered skin burn with blackening here and there, front of neck, front of chest, front of upper abdomen, front of left arm and fore- arm of different shapes and sizes.
2. Lacerated penetrative injury on right side of front of chest 1'' medial and 1'' above right nipple and skin around injury is burned and blackened. Size of the injury 2'' X 1'' X chest cavity deep.
3. Fracture ribs of right 4th and 5th ribs.
4. Right lung was ruptured.
5. Diaphragm of lever was ruptured."5
He opined that death was due to shock and haemorrhage due to the bomb injury which was ante-mortem and homicidal in nature. He proved the post- mortem report (Exbt.7). In cross-examination, he stated that the above injuries are due to remnants of bomb. He clarified that if the bomb bursts on a part of the body, it leaves a deep injury on that portion.
Bastab Kr. Paul (P.W.14) was the officer-in-charge of Gagnapur police station. On 24/25th October, 2014, around 12.45 a.m. while he was engaged in patrolling duty, he noticed a motorcycle coming from Ghola and proceeding towards Sridharpur. He detained the motorcycle and questioned the riders. Upon questioning they disclosed their names as Prasenjit, Somnath and Subit. He diarized such fact vide G.D. Entry No.1063 dated 24/25-10-2014. He handed over the persons along with the motorcycle to the Investing Office (P. W. 20). He signed on the seizure list relating to seizure of motorcycle (Exbt.8).
Atanu Bandopadhyay (P.W.20) is the investigating officer in the instant case. He went to the place of occurrence. He drew up the rough sketch map with index (Exbt.11). He examined witnesses and recorded their statements. He seized remnants of bomb under a seizure list (Exbt.3/2). He seized the motorcycle from P.W.14 under a seizure list (Exbt.8/2). He collected inquest report and post- mortem report. He submitted charge-sheet.
Evidence of the aforesaid witnesses clearly show that on the night of 24th October, 2014, a celebration was going on in front of a Kali Puja mandap situated at Asannagar bazar. Local people including Shibu Pal (P.W.3) and Uttam Sikder were dancing with the aid of a tasa band. At that time, the appellant came to the spot with a socket bomb. He was requested to leave the spot by P. W. 3. As a result, the Appellant got enraged and threw the bomb at the revellers. Consequentially Shibu Pal (P.W.3), Uttam Sikder @ Uttam Master and a passerby Biswanath Mondol (P. W. 13) suffered severe injuries. They were shifted to hospital where Shibu and Biswanath were treated and discharged. Uttam Sikder, however, succumbed to his injuries and died. Ocular version of the witnesses, particularly, 6 P.W.3 is corroborated by the medical witnesses, P.W.10, 11 and 12. It has been argued that there is a note in the injury report of P.W.3 that he suffered injury in the course of road traffic accident. I have examined the bed head tickets of the injured witnesses including the deceased, that is, Exbts. 4, 5 and 6. In all the bed head tickets bomb blast has been endorsed as the cause of injuries on the victims. Hence, I have no doubt in my mind that the victims had suffered bomb blast injuries due to the bomb hurled by the Appellant as narrated by the prosecution witnesses. Due to such injuries Uttam Sikder @ Uttam Master died.
Being faced with such a situation learned advocate appearing for the appellant argued in the alternative that the appellant had no intension to kill the victim and the bomb had been thrown on a concrete road as would appear from the evidence of Mrityunjoy Mondal (P.W.19). Hence, the conviction may be altered from section 302 I.P.C. to section 304 I.P.C.
I am unable to accept such contention also. Evidence has come on record from the prosecution witnesses particularly P.W.1 and P.W.8 that the bomb was thrown at the victim, that is, Uttam Sikder @ Uttam Master. It is possible that P.W.19 in the course of confusion and milieu PW 19 did not correctly note the place where the bomb was thrown. I am emboldened to come to such conclusion due to the extensive injury suffered on the body of the deceased as would appear from evidence of post-mortem doctor (P.W.12). Apart from the multiple scattered burn injuries noted on various parts of the body of the deceased, P.W.12, a lacerated penetrative injury is found on the right side of chest. Size of the injury was 2"/1" and it was chest cavity deep. Fourth and fifth ribs were fractured. The aforesaid extensive and devastating injury on the chest of the victim resulting in a deep penetrative wound which was chest cavity deep causing fracture of the fourth and fifth ribs as per the opinion of the medical witness, corroborates the the prosecution case that the bomb had burst on the chest of the victim and not on the road. The appellant may not have had intension to kill the victim but the fact that he threw a bomb at revellers including the deceased who were dancing in front of a puja mandap clearly makes his act fall within the penal ambit of the fourth explanation in section 300 of I.P.C. which reads as follows:- 7
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder,.....
2ndly. - .....
3rdly. - .....
4thly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
Act of the appellant in throwing a bomb at a group of revellers which resulted in death of one of them is, in my considered opinion, so imminently dangerous that it must in all probabilities cause death or bodily injury which is likely to cause death. Injury and smell of bomb ingredients on the palm of the appellant when he was apprehended by P.W.14 shortly after the incident also does not help the defence. On the contrary, such injury on the hand of the appeallant probabilises his proximate presence to the place where the bomb has burst and corroborates the prosecution case in toto. Factual matrix of the cited case is completely different from the present one. In the said report the deceased and his family members had cut a canal resulting in inundation of the field of the accused persons and destruction of their crops. Over such dispute, one of the accused persons had thrown a bomb. The Bench observed that such act was prompted out of anguish as the land of the accused person had been inundated by the deceased and his family members causing loss. No such provocation appears to be evident in the facts of the present case. On the other hand, the appellant had been requested by P.W.1 to go away from the spot as he was carrying a deadly weapon viz. bomb. At this he got enraged and threw the bomb at the revellers which hit the deceased resulting in his death. Wanton, irresponsible and unprovoked conduct of the appellant caused grave penetrating injury on the chest of the deceased resulting in fracture of rib bones. Conduct of the appellant and the fatal injury suffered by the deceased on a vital part of his body leaves no doubt in my mind that the appellant had committed the graver penal offence of murder and his culpability cannot be scaled down to the lesser offence of culpable homicidal death not amounting to murder punishable under Section 304 I.P.C. 8
Accordingly, I uphold the conviction and sentence imposed on the appellant. Appeal is accordingly dismissed.
Period of detention, if any, undergone by the appellants during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon them in terms of Section 428 of the Code of Criminal Procedure.
Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.
Photostat certified copy of this judgment, if applied for, shall be made available to the parties within a week from the date of putting in the requisites.
I agree.
(Manojit Mandal, J.) (Joymalya Bagchi, J.)