Calcutta High Court (Appellete Side)
Anar Sk. @ Anarul Sk vs The State Of West Bengal on 7 February, 2020
Author: Arijit Banerjee
Bench: Arijit Banerjee
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IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Appellate Side
CRA 640 of 2007
Anar Sk. @ Anarul Sk.
-Vs.-
The State of West Bengal
Before: The Hon'ble The Chief Justice Thottathil B. Radhakrishnan
&
The Hon'ble Justice Arijit Banerjee
For the appellant : Ms. Anasua Sinha, Adv.
For the State : Mr. Madhusudan Sur, Ld. APP.
Mr. Monaranjan Mahato, Adv.
Heard On : 13.11.2019 & 11.12.2019
CAV on : 11.12.2019
Judgment On : 07.02.2020
Arijit Banerjee, J.:-
1.This is an appeal against the Judgment and order of conviction and sentence dated 5th October, 2007 and 6th October, 2007 passed by the Learned Additional District and Sessions Judge, Jangipur, Murshidabad in 2 Sessions Trial No.4 (September)/2003 in Sessions Serial no.131/2003 convicting the appellant under Sections 302 and 326 of the Indian Penal Code (in short 'IPC'). The appellant was sentenced to life imprisonment and to pay a fine of Rs.5,000/-, in default rigorous imprisonment for one year, for the offence punishable under Section 302 of IPC. He was also sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default rigorous imprisonment for three months, for the offence punishable under Section 326 of IPC. The sentences were directed to run concurrently.
2. The prosecution case as appears from the written complaint lodged by P.W.1 and from the prosecution's evidence on record, is that the appellant and P.W.1, who are brothers, participated in a Salish (conciliatory meeting) that was held in the house of P.W.1 on 16.02.2003 at about 7 p.m. The issue was to settle a dispute regarding purchase of a portion of the appellant's homestead by P.W.1. It had earlier been agreed that P.W.1 would purchase a portion of the appellant's house for Rs.13,000/- which was to be paid within a month. However, such payment was not made within the stipulated period. Hence, the appellant refused to sell portion of his property to P.W.1. A quarrel started regarding this between the appellant and P.W.1 and their respective wives. At about 8:00 p.m. the appellant left the meeting. P.W.1 also went out from the meeting to bring some papers. The wife of P.W.1, i.e., Tanuja, was standing on the veranda of her house with her child of about two and a half years in her lap. The appellant then came back and threw a bomb at Tanuja. She sustained severe injuries and died on the spot. 3 The son of P.W.1 who was in his mother's lap also sustained injuries. The mother of P.W.1 and the appellant sustained severe injury to her eyes.
3. P.W.1 lodged a written complaint with the police on 17th February, 2003 at 00:35 hrs. On the basis of the written complaint, Samserganj P.S. Case No.21 of 2003 dated 17th February, 2003 under Sections 302/326 of IPC read with Sections 3 & 4 of Explosive Substances Act, 1908 was started against the appellant. This culminated in a charge-sheet charging the appellant of the aforesaid offences. The contents of the charge-sheet were read over to the appellant to which he pleaded not guilty and claimed to be tried. Hence, the trial.
4. The prosecution examined 25 witnesses. The defence examined none. The accused was examined under Section 313 of the Criminal Procedure Code (Cr.P.C.). His case was one of complete denial.
5. The learned Trial Judge analysed the evidence on record. The Learned Judge held that there were four eye witnesses to the incident being P.W.2 (mother of the accused), P.W.5 (sister of the accused) and P.Ws. 9 & 21 (residents of the same village). Primarily on the basis of the evidence of the said four prosecution witnesses, the Learned Judge found the accused to be guilty of offences punishable under Sections 302 and 326 of IPC. As regards the charge under the Explosive Substances Act, 1908, the Learned Judge acquitted the accused holding that "there is no case against Anar Sk. under Sections 3 and 4 of ES Act. Anar Sk. is thus acquitted under Section 235(1) of Cr.P.C. for the offences under Sections 3 & 4 of Explosive Substances 4 Act." Let us see how far the conviction of the accused by the Learned Trial Judge under Sections 302 and 326 IPC is sustainable at law and in the facts of the case.
6. It will be helpful to look into the evidence of some of the key prosecution witnesses. P.W.1 is the de facto complainant. He is also the brother of the accused and the husband of Tanuja Bibi who died in the incident. He deposed about the quarrel that took place between him and the accused regarding sale of a portion of the house of the accused. He then said that the accused then left the place of meeting. He was going out from his house. "In the meantime my brother accused Anar reappeared there and hurled bomb towards my wife. As a result of which my wife was succumb at the spot and my said son Lalbabu sustained severe injuries on his person and my mother also sustained injury on her left eye." In cross-examination he said "the materials including splinters of the bomb everything pierced into the body of my wife." He said that he could not recall whether any materials of the bomb were found on the ground or was seized from the place of occurrence. His other three brothers namely, Mamlat Sk., Nabiat Sk. and Mainul Sk. absconded after the alleged incident. All of them returned to the village but the date of return he could not recall.
7. P.W.2 is the mother of the de facto complainant as well as the accused. She deposed that at the relevant point of time "a dispute arose amongst my all the sons." She said that at the Salish that was going on in the house of P.W.1, the accused disclosed that he won't sell his house to P.W.1. A quarrel started between the wives of P.W.1 and the accused. The 5 accused took his wife to his house. Thereafter, the accused hurled bomb towards the house of P.W.1 after collecting bomb from his house. Because of the bomb blast she sustained injuries to her eye and became senseless. In cross-examination she stated that she does not see well. It was dark at the time of the incident. She also stated, inter alia, as follows: "...In the middle side of the house of P.W.1 bomb was hurled after it was hurled from northern direction. House of P.W.1 and the accused are adjacent intervening by one cubit away. At the time of hurling bomb there was a hue and cry with uttering 'Kere, kere' (who is that?). Thereafter, I saw wife of P.W.1 was lying there. Thereafter, P.W.1 came. Myself and my daughter were standing near my residence... I also did not state to I.O. that I sustained injury on my eyes and became senseless..."
8. P.W.5 is the sister of the de facto complainant as well as of the accused. In her evidence she stated, inter alia, as follows: "... on last 3rd Falgun at about 8/8:15 p.m. the incident took place. P.W.1 was to pay money to the accused towards consideration of taking possession of his house and over that issue a dispute arose in between P.W.1 and the accused and a quarrel took place in between the wife of P.W.1 with the wife of the accused. Anar (accused) took his wife to his house and thereafter he hurled bomb to the wife of P.W.1 Tanuja who was standing in the veranda of the house of P.W.1. I saw the incident. Tanuja died on the spot. The child of Tanuja namely Lalbabu also sustained injury by that bomb and he fell down from the lap of Tanuja. Lalbabu sustained injuries on his abdomen and thigh. My mother also sustained injuries on her eyes... I did not make 6 whether any article of explosive substance laid on earth. I also cannot say exactly whether police seized any explosive materials... He (son of P.W.1) sustained bomb splinters... On hearing the sound of explosive of bomb on turn I saw Tanuja was lying on the ground in injured condition."
9. P.W.9 is a resident of the village where the accused resided. He deposed, inter alia, as follows: "...About ten months ago on 3rd Falgun at about 8/8:15 p.m. the incident took place. On that day in the evening I came back home at Naopara. On hearing hue and cry I rushed near the house of P.W.1 and the accused. I asked one of the villagers what about the salish. The said villagers told me that salish has been postponed. In the meantime, I heard a sound of bomb explosion and then at the sparkling of the bomb I saw accused Anar as the night was then dark. Accused Anar hurled the bomb towards the wife of P.W.1 who was standing on the veranda of P.W.1 and as a result the wife of P.W.1 died instantly... I saw the incident at a distance of about 10 cubits away... Many other villagers also assembled there as it was dark I could not recognize them... It is not a fact that I did not see accused Anar at the sparkling of the bomb explosion."
10. P.W.10 was also a resident of the same village. He stated, inter alia, as follows: "...Myself and other salisians had been there and Anar was called in that salish. On being asked by us Anar told us that he was agreed to sell his land to P.W.1, but as P.W.1 did not pay him the consideration within the stipulated period, he would not sell his land to P.W.1... We then advised both P.W.1 and accused Anar not to quarrel over that issue and we left for our home. After a few while I heard sound of an explosion of bomb and had 7 been to the house of P.W.1 and saw the wife of P.W.1 was then lying dead in the veranda of the house of P.W.1 and I heard from the public assembled there that Anar left the place after committing murder of the wife of P.W.1. I did not see the incident of murder personally... It is true that after institution of this case, accused Anar and his other brothers left their house out of fear..."
11. P.W.21 was also a resident of the same village. He deposed, inter alia, as follows: "... I know the incident. About two years and one month ago the incident took place. Over a dispute regarding land of this accused in between P.W.1 and this accused a salish sat on the relevant date at about 7 p.m. in the newly constructed room of P.W.1. There was a bit delay on the part of P.W.1 in paying the money towards consideration of said land of accused and as such accused disobeyed the salish and disclosed that he would not sell his land to P.W.1 and as salish ended in fruitless result on aforesaid ground after salish is over a quarrel started in between wife of P.W.1 viz. Tanuja Khatun with the wife of this accused viz. Mohori. In the meantime, this accused taking a bomb from his house hurled towards Tanuja Bibi who was standing then in the veranda of shop of P.W.1 with her boy on her lap.... I saw the incident personally standing on my gate which is about 10 or 15 cubits away from the place of occurrence..." In cross- examination he stated, inter alia, as follows: "There was smoking due to explosion of that bomb instantly. Mother of P.W.1 was standing about 12/14 cubits away from Tanuja Bibi at the gate of her room. Remnants were scattered lying in the ground at the P.O.... Not a fact that I was tutored by 8 P.W.1 prior to making my statement under Section 164 Cr.P.C.... Not a fact that I am a handy man of P.W.1... Not a fact that in order to grab the property of the accused in connivance with P.W.1 I am deposing falsely..."
12. P.W.24 is the doctor who conducted post mortem on the dead body of the deceased wife of P.W.1. He noted the following injuries on the dead body:-
"1. Right hand grossly lacerated exposing bone. Muscles are hanging.
2. Left breast skin lacerated exposing - fat medial to nipple.
3. 1" vertical opening - left side of lower sternum.
4. Black stain left side of face lateral to left angle of mouth.
5. Epigastric burn with skin loss.
6. Burn and black stain on neck."
He deposed that in his opinion the cause of death was the injuries described above which were ante-mortem bomb blast injury. In cross-examination he stated that he found no unburnt powder on the dead body of the deceased. He did not use any magnifying glass. He came to learn from the Inquest Report about the injuries being caused by bomb blast prior to proceeding to 9 make post mortem examination. He denied that being influenced by the Inquest Report he mentioned that the injuries received by the deceased were from bomb blast.
7. P.W.25 is the Sub Inspector of Police who was the Investing Officer. In his evidence he stated, inter alia, as follows: "... I also seized some blood stained earth and some controlled earth from the spot and put seal and label and prepared seizure list in presence of the witnesses.... I also seized the wearing apparels of the deceased.... after P.M. examination of the deceased was over on 17.02.2003.... By this seizure list I seized one printed saree, one red coloured petty-coat (Saya), five pieces of glass made churis (bangles) and one yellow coloured hair guarder of the deceased, one blood stained cotton shawal partly burnt of the deceased... Accused Anar Sk surrendered before the Court.... I did not send alleged seized blood stained and controlled earth for chemical examination.... I did not seize any bomb or remnants of bombs from the P.O...."
8. We have carefully analysed the evidence on record. It has been the consistent case of all the prosecution witnesses that the accused hurled a bomb at the wife of P.W.1. The bomb blast caused severe injuries to her and she died on the spot as a result thereof. The baby child of P.W.1 and the mother of P.W.1 were also injured by the bomb splinters. The accused was charged under Section 302 IPC for committing the murder of the wife of P.W.1 and also under Section 326 IPC for voluntarily causing grievous hurt to the baby child and the mother of P.W.1. One common thread runs through the depositions of all the prosecution witnesses, i.e. the accused 10 murdered the wife of P.W.1 by causing bomb explosion which also resulted in grievous injury to the mother and baby child of P.W.1. The accused was also charged under Sections 3 & 4 of the Explosive Substances Act, 1908 which read as follows:-
"3. Punishment for causing explosion likely to endanger life or property.- Any person who unlawfully and maliciously causes by-
(a) any explosive substance an explosion or a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with imprisonment for life, or with rigorous imprisonment or either description which shall not be less than ten years, and shall also be liable to fine;
(b) any special category explosive substance an explosion of a nature likely to endanger life or to cause serious injury to property shall, whether any injury to person or property has been actually caused or not, be punished with death, or rigorous imprisonment for life, and shall also be liable to fine.
4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property.- Any person who unlawfully and maliciously-
(a) does any act with intent to cause by an explosive substance or special category explosive substance, or conspires to cause by an explosive substance or special category explosive substance, an explosion of a nature likely to endanger life or to cause serious injury to property; or 11
(b) makes or has in his possession or under his control any explosive substance or special category explosive substance with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in India, shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished, -
(i) in the case of any explosive substance, with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
(ii) in the case of any special category explosive substance, with rigorous imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
9. If an explosion was caused by using a bomb, be it country made bomb or special category bomb, the same would leave some remnants at the place of explosion, be it burnt/unburnt gun powder or splinters or any such other ingredients of a bomb. In the present case, no splinters or other remnants of a bomb were seized by the Investigating Officer from the place of occurrence.
This is the clear evidence of the Investigating Officer (P.W.25). The evidence of the post mortem doctor also does not inspire much credence. Although he noted in his report the injuries suffered by the deceased wife of P.W.1, which we have indicated above, and has opined that such injuries were ante- mortem bomb blast injury, he has also stated that he did not find any 12 unburnt powder on the dead body of the deceased. This is unusual. Further, he did not use a magnifying glass. The quality or standard of his post mortem examination leaves a lot to be desired. A suggestion was also put to him that his report was influenced by the Inquest Report which he had seen before conducting the post mortem examination and which stated that the injuries on the body of the deceased were caused by bomb blast, which suggestion however, he denied.
10. The Investigating Officer in his deposition stated that he seized a blood stained cotton shawl partly burnt of the deceased but the same was not sent for forensic examination. He also seized blood stained and controlled earth from the place of occurrence but again did not send the same for chemical examination.
11. Even taking the post mortem report at face value, there is not an iota of evidence apart from the testimony of the prosecution witnesses that there was a bomb blast at the place of occurrence on the date of the incident. The Learned Trial Judge found that there was absolutely no material to carry home the charge under Sections 3 & 4 of the Explosive Substances Act, 1908 and acquitted the accused of the said charge. This necessarily would mean that the accused did not cause any explosion by hurling bomb or otherwise at the place of occurrence. If that is correct, the entire prosecution case fails since the essence of the prosecution case is that the accused committed the offences punishable under Sections 302 and 326 IPC by causing explosion of a bomb.
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12. Even assuming that there was an explosion of a bomb at the place of occurrence which caused the death of the wife of P.W.1 and caused grievous injury to the child and mother of P.W.1, does the evidence on record conclusively and/or beyond reasonable doubt establish that it was the accused who hurled the bomb? We think not. P.W.1 i.e., the de facto complainant is not an eye witness. His evidence read with that of P.W.2 i.e. his mother clearly would show that P.W.1 was not present at the place of occurrence at the time of the incident. He came to that place after the bomb explosion. P.W.2 has been relied upon by the Learned Trial Judge as an eye witness. The time of occurrence was around 8 p.m. It was the month of February. It was dark. This was also stated by P.W.2. She further stated that her vision is not good. She also said that at the time of hurling of the bomb there was a hue and cry which indicates that there were several people at the place of occurrence at the time of the incident. It also comes out from her evidence that at the relevant point of time a dispute arose amongst all her sons. It comes out from the evidence of P.W.10 that the accused and all his other brothers excepting P.W.1 absconded after the incident. Why would the other brothers flee? We are unable to place much reliance on the evidence of P.W.2 and particularly on her statement that it was the accused who hurled the bomb at the wife of P.W.1, in view of her poor eyesight and the fact that it was completely dark at the place of occurrence.
13. P.W.5 has been relied upon by the Learned Trial Judge as another eye witness. However, analysing her testimony we find that in cross-examination 14 she has stated that on hearing the sound of explosion of bomb, on turning, she saw that the wife of P.W.1 was lying on the ground in injured condition. It is not at all clear that she actually saw the accused hurling the bomb.
14. P.W.9 said that he heard a sound of bomb explosion and then in the sparkling of the bomb he saw the accused as the night was then dark. This would necessarily mean that he could not have seen who actually hurled the bomb. Sparkling of a bomb occurs only when the bomb explodes when it hits the ground or the targeted object or person. P.W.9 might have seen the accused at or near the place of occurrence in the sparkling of the bomb explosion but then it appears from the evidence of other prosecution witnesses that there were several other people present at the place of occurrence. The evidence of P.W.9 in our opinion does not establish beyond reasonable doubt that it was the accused who hurled the bomb.
15. P.W.21 stated that he saw the incident of the accused hurling bomb towards the wife of P.W.1 from a distance of about 10/15 cubits. He also said that remnants were scattered lying in the ground at the place of occurrence. However, as already noted above, P.W.25 (I.O.) did not seize any remnants of any bomb or other explosive substance from the place of occurrence. A suggestion was also put to P.W.21 that he was a handy man of P.W.1 and was deposing falsely to grab the property of the accused in connivance with P.W.1, which suggestion of course he denied.
16. From a careful reading and analysis of the evidence on record, we are of the view that it cannot be ruled out that the accused has been falsely 15 implicated which is a fall out of a property dispute. While it is undisputable that the wife of P.W.1 died and the child and mother of P.W.1 suffered injuries, on an overall assessment of the evidence on record and considering the totality of the facts and circumstances of the case, we are of the opinion that it cannot be said beyond reasonable doubt that the perpetrator of the act causing death of and injury to the victims was the accused/appellant. This is not such a case where one can say that the death of or injury to the victims cannot be explained excepting by imputing guilt to the accused.
17. It is a fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of reasonable doubt. It is up to the prosecution to adduce convincing evidence to establish the charges brought against the accused. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing evidence to show that he is guilty of the offence with which he is charged. The accused need not prove his innocence. He has a right to remain silent. Only in exceptional cases is he required to speak out and offer an explanation in support of his innocence i.e., where no other theory excepting the guilt of the accused can explain the commission of the concerned offence. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. These propositions of law are so well established that one need not cite authorities to support the same. However, if one wants, one may refer to the decision of the Hon'ble Apex Court in the case reported in (2008) 10 SCC 450 [Ghurey Lal v. State of U.P].
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18. Keeping in mind the above salutary principles of criminal jurisprudence, we are unable to come to a conclusion that the guilt of the accused has been established beyond reasonable doubt. Disputes and differences arose amongst brothers relating to sale of a property. The time of occurrence was after 8 p.m. on a winter night when it was pitch dark. There was an alleged explosion of a bomb killing the wife of P.W.1 and injuring his mother and child. There were several persons present at the place of occurrence. The evidence of the so-called eye witnesses does not inspire credence. No remnants of any bomb or other explosives were seized from the place of occurrence. Under those circumstances, it cannot be said that no hypothesis excepting one consistent with the guilt of the accused is acceptable. We are of the considered view that this is a fit case where benefit of doubt should be given to the accused.
19. In the result, the appeal succeeds. The judgment and order of conviction of the Learned Trial Court is set aside. The appellant shall be released forthwith from the Correctional Home where he presently is unless he is wanted in custody in connection with some other case. Let the records of this case be forthwith sent back to the Learned Trial Court for necessary orders being passed by the Learned Trial Judge.
20. Before parting, we are constrained to record our dissatisfaction as regards the manner in which investigation was carried out in this matter. There were serious lapses on the part of the Investigating Officer. To point out one, the apparel of the deceased and the blood stained mud collected from the place of occurrence ought to have been sent for forensic 17 examination, which was not done. Inexcusable deficiency in the mode of investigation has perhaps disabled the prosecution to prove its case. However, the accused cannot be expected to surrender his innocence at the hands of inefficient prosecution. The benefit of doubt arising out of such inefficient investigation must be given to the accused.
21. CRA 640 of 2007 is accordingly disposed of.
22. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
I agree.
(Thottathil B. Radhakrishnan, CJ.) (Arijit Banerjee, J.)