Calcutta High Court (Appellete Side)
Johad Sheikh & Ors vs The State Of West Bengal on 26 November, 2014
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
1
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
C.R.A. No. 243 of 1984
Johad Sheikh & Ors.
Vs.
The State of West Bengal
Amicus Curiae : Ms. Devipriya Mitra
For the State : Mr. Subir Banerjee
Heard on : 26th November, 2014
Judgement on : 26th November, 2014
Joymalya Bagchi, J.:
The appeal is directed against the judgement and order dated 16.05.1984 passed under Sessions Case No. 110 of 1983 (Sessions Trial 2 No. 1 of March, 1984) convicting the appellant no. 1 for commission of offence punishable under Section 9-B(2) of the Explosive Substance Act and under Sections 304A and 338 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for three years and to pay a fine of Rs,2,000/- in default, to suffer imprisonment for six months for the offence punishable under Section 9-B(2) of the Explosive Substance Act and sentencing him to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/- in default, to suffer imprisonment for three months for the offence punishable under Sections 304A and 338 of the Indian Penal Code, all the sentences to run concurrently. By the self-same judgement and order appellants no. 2 and 3 were convicted for commission of offence punishable under Section 323 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- each in default, to suffer imprisonment for two months each.
Prosecution case, as alleged, against the appellants is to the effect that on 21.06.1981 around 7a.m. at village Gour Bazar, P.S. Mayureswar, a quarrel took place over one Robai alias Helauddin cutting bamboo from a disputed bamboo grove. Following that quarrel thirteen accused persons including the appellants came in front of Robai's house being variously armed with lathis, bombs etc. and started hurling abuses. Other villagers including the defacto complainant Abdul Gani, (P.W. 1), intervened and the accused persons left the place. Sometime 3 later, around 8 to 8.30a.m., on that day, the said thirteen accused persons again assembled in front of Robai's house, being variously armed with lathis and bombs. One of them, Mozam hurled a bomb that struck the wall of a cowshed belonging to Lokman Sheikh, father of the defacto complainant and exploded. Thereafter appellant no. 1, Johad threw a bomb at the face of Abdul Latif who was standing nearby. Abdul Latif was seriously injured and he had to be removed and admitted in a hospital but he succumbed to his injuries on that day. After hitting Abdul Latif, Johad also hurled another bomb at Robai's back. The bomb struck Robai and he fell down in a drain by the roadside. Other accused persons hitted Robai with the lathis. Mujkura Bibi (P.W. 4) came up to rescue her son but she was struck by lathi by appellant no. 2, Hossain Sheikh. P.W. 5, Joynal Sk., was struck by lathi by appellant no. 3, Karim Sheikh. Robai was also examined and treated by doctor at Mollarpur Primary Health Centre. On the basis of written complaint lodged by Abdul Gani, P.W. 1, being Mayureswar Police Station Case No. 22/145 dated 21.06.1981 under Section 148/149/326/307 of the Indian Penal Code and under Section 6(3) of the Indian Explosive Act was registered against the appellants and the other accused persons. In conclusion of investigation, charge-sheet was filed against the appellants and other accused persons and the case being a sessions triable one was committed to the Court of Sessions, Birbhum and transferred the case to the Court of learned Additional Sessions Judge, Rampurhat, Birbhum for 4 trial and disposal. Charges were framed against the appellants and other accused persons under Section 147 of the Indian Penal Code. The appellant no. 1 was also charged under Section 302 of the Indian Penal Code for committing the murder of Abdul Latif and under Section 307 of the Indian Penal Code for attempting to murder of Robai by hurling bomb at him and under Section 9-B(2) of the Explosives Act and appellants no. 2 and 3 and one Imam Box were separately charged under Section 324 of the Indian Penal Code and the co-accused Mozam was separately charged under Section 9-B(2) of the Explosive Act. The appellants and other accused persons pleaded not guilty and claimed to be tried. In the course of trial fourteen prosecution witnesses were examined and a number of documents were exhibited. The defence of the appellants and other accused persons was one of innocence and false implication.
In conclusion of trial, the trial court by judgement and order dated 16.05.1984 convicted the appellant no. 1 for commission of offence punishable under Section 9-B(2) of the Explosive Substance Act and under Section 304A and 338 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for three years and to pay a fine of Rs,2,000/-, in default, to suffer imprisonment for six months for the offence punishable under Section 9-B(2) of the Explosive Substance Act and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs.1,000/-, in default to suffer imprisonment for three 5 months for the offence punishable under Sections 304A and 338 of the Indian Penal Code, all the sentences to run concurrently. Appellant no. 1 was, however, acquitted of the charges under Section 302 and 307 of the Indian Penal Code. Appellants no. 2 and 3 were convicted for the offence punishable under Section 323 of the Indian Penal Code and sentenced them to suffer rigorous imprisonment for six months and to pay a fine of Rs.500/- each in default, to suffer imprisonment for two months each. All the appellants and other accused persons were acquitted for the charges under Section 147 of the Indian Penal Code and accused Mozam was also acquitted of the charges under Section 9- B(2) of the Explosives Act.
Being aggrieved and dissatisfied with the aforesaid conviction and order of sentence the appellants have preferred the present appeal. No appeal was preferred by the State against the order of acquittal passed by the trial court. However, at the time of admission of appeal this Court issued a rule upon the appellant no. 1 to show-cause why the acquittal of the appellant no. 1 in respect of the charge under Sections 302 and 307 of the Indian Penal Code be not set aside.
Ms. Mitra, learned Counsel appearing as amicus curiae, submits that the evidence of prosecution witnesses is unreliable. They are inconsistent with one another and there is nothing on record to show that the appellant no. 1 intended to kill or cause injury which is likely to cause death. Victim Abdul Latif died in course of skirmish and there is 6 nothing on record to show that he suffered from injuries due to throwing of bomb by the appellant. There is no evidence to connect the appellants no. 2 and 3 with the alleged incident. Since the other accused persons have been acquitted from the instant case she prayed for acquittal of the appellants as well as discharge of rule issued by this Court in respect of appellant no. 1.
Mr. Banerjee, learned Additional Public Prosecutor, appearing on behalf of the State, submits that there is convincing evidence on record that the appellant no. 1 threw bombs which hit Abdul Latif and Robai, causing severe injuries on them and Abdul Latif succumbed to his injuries. Conviction of the appellant no. 1 under Sections 304A and 338 of the Indian Penal Code is inadequate in the facts and circumstances of the case. Issuance of the rule for setting aside the order of acquittal of the appellant no. 1 on the charges of Sections 302 and 307 of the Indian Penal Code is wholly justified. He further submits that role of the appellants no. 2 and 3 in the assault are also established and, therefore, the appeal ought to be dismissed and the rule for setting aside the order of acquittal of the appellant no. 1 on the score of Sections 302 and 307 of the Indian Penal Code be allowed.
P.W. 1, Abdul Gani, is the first informant of the instant case. He stated that on 21.06.1981 at around 7a.m. there was a quarrel in the village over cutting bamboo from a bamboo-grove by Robai alias Helauddin. Following the quarrel the appellants and other accused 7 persons assembled in front of Robai's house and started hurling abuses. Thereafter Mozam threw bomb which struck the wall of the house of Lokman Sk., since deceased. The said bomb exploded. Thereafter the appellant no. 1 hurled a bomb at Abdul Latif who was standing under a palm tree. Abdul Latif was struck on the face and he fell down. Robai was standing nearby and seeing Latif struck with bomb he started fleeing away when the appellant no. 1 hurled another bomb at Robai's back. The bomb struck Robai near a neem tree. He fell down in a drain. Appellants no. 2 and 3 and Imam Box started to beat Robai with lathi. P.W 4, Mujkura Bibi, mother of Robai, and P.W. 5, Joynal Sk., father in law of Robai, came to his rescue and were assaulted by the appellants no. 2 and 3. Thereafter the accused persons left the place of occurrence. Latif and Robai were taken to their houses. P.W. 1 went to Mayureswar Police Station and reported the incident to the officer-in-charge. Police wrote down the same and he signed on the said document marked as Exhibit 1/1. Blood stained wearing apparels of Abdul Latif were handed over to the police in presence of P.W. 1. P.W. 2, Dr. Probal Kumar Bose, was a medical officer attached to Mollarpur Primary Health Centre. On 21.06.1981 at about 10.15a.m. he examined Abdul Latif and found the following injuries :
1) Lacerated injuries, multiple in number with fracture of the lower jaw from the nose to the base of the neck on the anterior side;8
2) Black eye on the right side."
Abdul Latif stated to him that he was assaulted by the appellant no. 1 and Mojammel Sk. P.W. 2 also examined Robai Sk. and found the following injuries :
1) One Echymosis of about 3" x 2 ½ " on the back of neck from Occipital bone downwards upto the Vth certical prominence and extending upto sternoclavido-muscle on either side;
2) Multiple abrasions over the right shoulder extending upto the scapula on the back."
He stated that injury no. 2 could be caused by bomb while injury no. 1 may be caused by lathi. Robai stated that he was assaulted by the appellants and one Alim Sk. P.W. 3, Asgar Ali, is a neighbour who witnessed the incident. He has corroborated the evidence of P.W. 1. He stated that there was a heavy downpour in the locality after the incident and as a result of that all the stains of blood were washed away from the place of occurrence. He stated that police visited their village on that day and collected bomb-splinters and also blood stained wearing apparels of Abdul Latif. P.W. 4, Mujkura Bibi, is the mother of Robai Sk. She stated that on the fateful day at around 7a.m. Robai had cut bamboo from a grove. The appellants along with other accused persons had come in front of their house but they were persuaded to disperse. Subsequently the accused persons again came and started abusing Robai. The 9 accused Mozam hurled a bomb that hit the wall of Lokman's house and exploded. Latif was then standing at the foot of a palm tree and the bomb thrown by appellant no. 1 hit Latif on his face and he fell down with bleeding injuries on his face. Seeing that, Robai started fleeing away and the appellant no. 1 threw another bomb at him which hit him at the back and he fell down in a drain. The appellants no. 2 and 3 and Imam Box assaulted him with lathi. She was also assaulted by them when she came to rescue Robai. P.W. 5, Joynal Sk., is the father-in-law of Robai Sk. He has corroborated the evidence of P.Ws. 1, 3 and 4. P.Ws. 6 and 7 are also neighbours and eye-witnesses of the incident. They have supported the prosecution case and corroborated the evidence of P.W. 1,3,4 and 5. P.W. 8, Abdul Hai, was tendered for cross-examination. P.W. 9, Abdul Jalil, was A.S.I. of police attached to Arambagh Police Station. He held inquest over the dead body of Abdul Latif. Dead body was identified by the deceased brother, Karim Sk. P.W. 10, constable 638, Mojibul Haque, carried the dead body of Abdul Latif, to Sub-divisional hospital for post-mortem examination. P.W. 11, Samsul Haque, was declared hostile. He has, however, proved his signature on the seizure list in the instant case. P.W. 12, S.I., Nirmal Choudhury, was posted as Officer-in-Charge of Mayureswar Police Station. He took over investigation of the case from Babar Ali, P.W. 14, the former Officer-in- Charge. He submits charge-sheet in the instant case. P.W. 13, Dr. Ajoy 10 Mukherjee, is the medical officer who held the post-mortem over the dead body of Abdul Latif. He found the following injuries :
"On examination I found
1) Extensive lacerated injury involving the nose, face, jaw, teeth, tongue and the surrounding soft structures;
involvement of the left side was more extensive than the right side.
2) Fracture of upper and lower Jaw.
I did not find any other injury external or internal". He opined that the death of the said person was antemortem and homicidal due to blast injury and the concomitant hemorrhage and shock.
P. W. 14, S. I. Babar Ali, was the Officer-in-Charge of Mayureswar Police Station at the time of occurrence. He received the written complaint from P. W. 1 and drew up formal First Information Report. He went to the place of occurrence on that day. He prepared the sketch map. He could not find blood as there was heavy rainfall. He seized the torn cloth pieces with smell of gunpowder from the place of occurrence. He seized wearing apparels of the deceased with bloodstains. He examined the witnesses. On 22.6.1981 he received the information that the victim had died. He made prayer for addition of section 304 of the Indian Penal Code. He examined Robai Sk. at Rampurhat Sub Divisional Hospital. He collected injury report from Mallarpur Primary Health 11 Centre. He sent the wearing apparels of Abdul Latif for chemical examination in Forensic Science Laboratory. He handed over the investigation to P. W. 12 as he was transferred.
The evidence of P. Ws. 1, 3, 4, 5, 6 and 7 establishes beyond doubt that Abdul Latif had suffered bleeding injuries due to bomb thrown by appellant no.1. Subsequently, Abdul Latif succumbed to such injuries at hospital. Medical evidence of P. Ws. 2 and 12 supports the ocular version of the aforesaid witnesses. P. W. 12, the Post Mortem Doctor, has deposed Abdul Latif suffered homicidal death due to bomb blast injuries. In the conspectus of such evidence on record I am surprised as to how the Trial Court recorded conviction of the appellant no.1 under sections 304A and 338 of the Indian Penal Code. Throwing a bomb at the victim resulting in severe injuries on his person and consequential death by no stretch of imagination can be held to be a rash and negligent act on the part of the accused. Hence, acquittal of the appellant no.1 from the charge under section 302 of the Indian Penal Code for the murder of Abdul Latif and his consequential conviction for the lesser offence under sections 304A and 338 of the Indian Penal Code is clearly perverse in law. Similarly, there is cogent and convincing evidence on record that Robai Sk. suffered injuries on his back due to bomb thrown by the appellant no.1. Intention of the appellant no.1 to kill Robai Sk. is evident from his conduct of throwing a bomb even when he was fleeing away. Acquittal of the appellant no.1 from the charge under section 307 12 of the Indian Penal Code is, therefore, wholly unjustified in the facts and circumstances of the case. It is pertinent to note that the prosecution was unable to examine Robai Sk. as he had expired prior to the recording of evidence. Hence, non-examination of Robai Sk. in the facts of the case would not militate against the truthfulness of the prosecution case.
For the aforesaid reasons, I am of the considered opinion that the acquittal of the appellant no.1 under section 302 of the Indian Penal Code and section 307 of the Indian Penal Code and his consequential conviction under the lesser offences under sections 304A and 338 of the Indian Penal Code is wholly perverse and a travesty of justice. It is true much time has lapsed in the meanwhile but in view of the fact that the act of the appellant no.1 had resulted in violent and untimely death of one person and grievous injury on another, it would be miscarriage of justice if the case is not remanded for retrial of the appellant no.1 by setting aside the acquittal of the said appellant under sections 302 and 307 of the Indian Penal Code and his consequential conviction under sections under section 304A and 338 of the Indian penal Code.
Coming to the conviction of the appellant nos. 2 and 3, I find that there is evidence on record that the said appellants had assaulted Robai Sk. as well as P. Ws. 4 and 5. Names of the said appellants have also been disclosed before the doctor (P.W.2) who treated the victims at Mallarpur Public Health Centre. Accordingly, conviction of the appellant nos. 2 and 3 is upheld.
13
Coming to the issue of sentence of the appellant nos. 2 and 3, I find that the incident occurred three decades ago and the appellants were imprisoned for about ten days during the course of investigation. Accordingly, I reduce the sentence imposed upon the appellant nos. 2 and 3 and direct that they shall suffer rigorous imprisonment for the period already undergone and shall pay a fine of Rs.500/- each in default to suffer rigorous imprisonment for seven days more.
So far as the appellant no.1, I set aside his acquittal under section 302 read with section 307 of the Indian Penal Code and his consequential conviction under sections 304A and 338 of the Indian Penal Code and remand the matter for retrial in accordance with law. The Trial Court shall re-hear the matter on the basis of evidence already on record and pass judgement thereon in accordance with law. Retrial of the appellant no.1 shall be concluded as expeditiously as possible without unnecessary delay.
The appellants are directed to surrender before the Trial Court within one month from date so that the appellant no.1 may face retrial and the appellant nos. 2 and 3 may pay the fine as directed above, failing which the Trial Court shall cancel the bail of the appellant no.1 and issue necessary coercive processes to secure attendance of appellant no. 1 for re-trial and/or take necessary steps for realisation of fine, as aforesaid, in respect of appellant nos. 2 and 3 in accordance with law. 14
The appeal is disposed of with the aforesaid direction. The Rule is made absolute.
Let the lower court records along with a copy of the judgement be sent down to the Trial Court at once for necessary action.
I record my appreciation for the able assistance extended by Ms. Devipriya Mitra, learned Counsel appearing as amicus curiae, for disposal of the appeal.
(Joymalya Bagchi, J.) sd/ag