Calcutta High Court (Appellete Side)
Khalil Sk. & Anr vs The State Of West Bengal & Anr on 26 November, 2018
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
(Criminal Appellate Jurisdiction)
Present: The Hon'ble Justice Shivakant Prasad
CRA 397 of 2009
Khalil Sk. & Anr.
-Versus-
The State of West Bengal & Anr.
For the Appellants : Mr. Swapan Mallick
Mr. S. K. Humyun Rezz
For the State : Mr. Ranabir Roy Chowdhury
Heard on : 26.09.2018
Judgment on : 26.11.2018
Shivakant Prasad, J.
This appeal is directed against the judgment and order of conviction dated 05.6.2009 and 06.6.2009 passed by Additional District & Sessions Judge, 3rd Fast Track Court, Berhampore, Murshidabad in Sessions Serial No. 574/2006 corresponding to S. T. No. 6/3-2007 convicting the appellants under Section 9B of Explosive Act.
Brief facts leading to the instant appeal is that on 19.9.2002 Inspector of Police Sankar Kumar Roy Chowdhury, officer-in-charge of Domkal P.S. lodged the suo motu complaint alleging inter alia that on 18/19.9.2002 in between 2 to 4 hours he himself along with S.I. Subrata Mazumdar, H.O. 584 Badal Pal. H.G. 588 Swapan Mondal and other forces of Domkal P.S. in pursuance of secret source information, held raid at Shambhu Nagar, Ramna Bazidpur Sekhpara, Lakshinathpore Malithapara in the house of Anarul Sk., Nousad Sk. and Khalil Sk. and seized about 2 kg. white colour gun powder in 3 polythene carry bag, about 2 kg. red colour gun powder in 3 polythene carry bags, about 1 kg. white colour gun powder in 1 polythene carry bag, about 1 kg. red colour gun powder in 1 polythene carry bag, about 1 kg. white colour gun powder in 1 polythene carry bag, about 1 kg. red colour gun powder in 1 polythene carry bag and also seized one improvised musket type pipe gun in presence of witnesses. On being asked the accused persons did not give any reasonable answer for the possession of the said articles. Thereafter they along with apprehended 3 accused persons and seized articles came back to P.S. First information report was registered suo motu against the appellants by Officer-in-charge Domkal P.S., namely, Sankar Kumar Roy Chowdhury on 19.9.2002 by Domkal P.S. case no. 118/02 under Section 5 Explosive Act, Substance Act and under Section 25/27 Arms Act by the appellants were arrested and subsequently released on bail.
On completion of the investigation I.O. submitted charge sheet no. 27 dated 28.02.2003 against appellants of the offence under Section 5 of Explosive Act and Section 25(2) of the Arms Act against all the three accused persons.
Charge under Section 9B of Explosive Act, 1884 was framed against the accused persons and charge under Section 25(1) B of Arms Act, 1959 was framed against Khalil Sk. to which they pleaded not guilty and claimed to be tried.
To bring home the aforesaid charges, prosecution examined 11 witnesses and on conclusion of evidence, the accused persons were examined under Section 313 Cr.P.C. to which each of them declined to adduce any defence witness.
Defence is one of the denial of charges levelled against the accused persons as emerged from the trend of cross-examination of prosecution witnesses and so also from their statements under Section 313 Cr.P.C. The learned Trial Judge, having heard the prosecution and the defence, was pleased to convict the appellants and said Nausad Ali Sk. for the offence under Section 9(B) of the Explosive Act and sentenced them to suffer simple imprisonment for two years each by the judgment and order dated 05.6.2009 and 06.6.2009, inter alia, on the grounds that the examination of the appellants under Section 313 of the Code of Criminal Procedure having not been in conformity with the provisions of the said charges, the impugned judgment and the order is liable to be set aside.
Learned Advocate for the appellants at the outset invited my attention to the question no. 2 in the examination of the appellants Anarul Sk., Khalil Sk. and Nausad Sk., the accused persons under Section 313 Cr.P.C. which are to the effect that it transpired from the evidence of P.Ws that the police recovered three polythene packets of 2 kg white colour gun powder and other three polythene packets of 2 kg of red colour gun powder on the night of 19.9.2002 from the house of Anarul Sk.
Question no. 2 was put to the appellant Khalil Sk. As revealed from the evidence of P.Ws in respect of recovery of 1 kg of white gun powder in a polythene packet and 1 kg of white colour gun powder in a polythene and one pipe gun on 19.9.2002 at night from his house.
Similar question no. 2 was put to the accused Nausad Ali Sk. asking him that Police had recovered three polythene packets of 2 kg of gun powder from his house on that night.
All the accused persons while answering the question no. 2 had simply answered by saying a 'lie'. The accused persons/appellants herein were also asked whether they would like to adduce any defence witness but they had declined to adduce any witness.
By so inviting my attention to the question and answers in the examination of the accused persons under Section 313 Cr.P.C., Mr. Swapan Mallick the learned Advocate for the appellants submitted that the questions put to them were rolled up questions since there has been vital contradiction and the omission in evidence of the prosecution which would throw shadow of doubt upon the prosecution case.
In support of his contention reliance is placed in a case of Inspector of Custom Akhnoor, Jammu and Kashmir Vs. Jaspal & Anr. reported in (2009) 2 SCC (Cri) 593 wherein it has been observed thus-
"Contextually we cannot bypass the decision of a three-Judge Bench of this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) as the Bench has widened the sweep of the provision concerning examination of the accused after closing prosecution evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations therein: (SCC p. 806, para 16) "It is trite law, nevertheless fundamental, that the pris1r's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasi1d by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questi1d at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."
It is argued that incriminating materials on the basis of the prosecution witnesses were not put to the appellants in their examination under Section 313 Cr.P.C. whereas the learned Advocate for the respondent State has countered the argument with the submission that the relevant questions were put to the appellant during their examination under Section 313 Cr.P.C.
Indubitably the purpose of examination of the accused under Section 313 of the Code of Criminal Procedure is to enable the accused to explain any circumstances appearing in the evidence against him.
Therefore, the object of examination under Section 313 is to give the accused an opportunity to explain the case made against him and his statement can also be considered in judging his innocence or guilt.
In Hate Singh Vs. State of Madhya Bharat reported in AIR 1953 SC 468 it has been laid down that the statement of the accused persons recorded in are among the most important matters to be considered at the trial.
The purpose of Section 313 of the Code is set out in its opening words- `for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him.' In Hate Singh, Bhagat Singh v. State of Madhya Pradesh (AIR 1953 SC 468) it has been laid down by Bose, J that the statements of accused persons recorded under Section 313 of the Code `are among the most important matters to be considered at the trial'. It was pointed out that the statements of the accused recorded by the committing magistraid and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and that they have to be received in evidence and treated as evidence and be duly considered at the trial. This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. The word `generally' in sub-section (1)(b) does not limit the nature of the questioning to 1 or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiteraid person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed. It is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questi1d separaidly about each material substance which is intended to be used against him. The questionings must be fair and couched in a form which an ignorant or illiteraid person will be able to appreciate and understand. Even when an accused is not illiteraid, his mind is apt to be perturbed when he is facing a charge of murder. Fairness, therefore, requires that each material circumstance should be put simply and separaidly in a way that an illiteraid mind, or 1 which is perturbed or confused, can readily appreciate and understand.
It is true. It is settled proposition laid down by the Hon'ble Apex Court is that the relevant questions are required to be put to the accused persons while their examination under Section 313 Cr.P.C.
Now this Court is called upon to scrutinise the evidence on record to find as to whether the relevant incriminating materials on evidence were put to be appellants herein are not. In this case according to Sankar Kumar Roy Chowdhury P.W.9 he was attached to Domkal P.S. as O/C. on 19.9.02. On 18/19.9.02 during night he along with S.I. Subrata Mazumdar, home guard Swapan Mondal and home guard Badal Pal had been at night on petrol duty at 8 a.m. at Shambhunagar village where they conducted raid in the house of Anarul Sk. After performing all formalities he made stated in the house in presence of witnesses as he had got serious information that bombs were kept in his house. From the house of Anarul Sk. appellant no. 2, 2 kg white colour gun powder and 2 kg red colour gun powder kept in an aluminium handi in his bed room was seized and on being interrogated P.W. 9 came to know the name of Nausad Sk. and accordingly on that very night the Police party conducted raid in the house of Nausad Sk. and seized 1 kg. white colour gun powder from his house. He also seized gun powder recovered from the house of Anarul Sk. and house of Nausad Sk. under seizure list.
On interrogation of Nausad Sk., P.W. 9 came to know the name of Khalil Sk. of Lakshinathpur then the Police party went to his house and recovered 1 kg red colour gun powder and 1 kg. white colour gun powder and also recovered from his possession one musket type pipe gun in his bed which were seized under the seizure list. It was learnt from them that they used to collect those materials from Aurangabad for supplying the same in different places. After the accused persons/appellants were along with another accused arrested. They were brought to the police station with the seized alamats as per seizure list. Thereafter suo motu complaint was lodged signed by him and proved as Exhibit-5. He has also proved the formal FIR drawn up by him on the basis of the complaint. The seizure list Exhibit-1/2 in support of the seizure of about 1 kg. of white colour gun powder in another polythene bag recovered from the house of the accused Nausad Ali Sk. was kept in a white nylon bag set to be Explosive Substances which were seized from the store room of the said accused persons of witnesses which is evident from the seizure list Exhibit-1/2.
Seizure list Exhibit-2/2 reveals that from the house of accused Khalil Sk. of Lakshinathpur Malithapara P.S.-Domkal about 1 kg. white colour gun powder in 1 polythene and 1 kg red colour gun powder in a polythene and also one musket type pipe gun length about 41 inches having trigger, firing pin, wooden butt, barrel were seized and recovered which were kept in the bed room of the accused.
It is also evident from the seizure list Exhibit-4/1 that about 2 kg. of white colour gun powder in three polythene carry bag and 2 kg. of red colour gun powder in three polythene carry bag kept in an aluminium handi were seized from the room of the accused Anarul Sk., the appellant no. 2. The investigation was endorsed to S.I. Bhudeb Chandra Roy, P.W. 11 for investigation.
P.W.11, I.O. during investigation on visit to the place of occurrence drew up sketch map of the place of occurrence along with explanatory index proved as Exhibit-7. After examining witnesses and recording their statements under section 161 Cr.P.C., O.C handed over the seizure list as well as the seized articles to him which were kept in Malkhana and were sent for opinion of the Expert. He also took sanction order dated 28.10.2002 Exhibit-8 from the District Magistrate Murshidabad for prosecution under Arms Act.
P.W. 1, home guard and constable P.W. 2 attached to the said police station have corroborated P.W.9 in respect of the conduct of raid in the houses of the appellants. According to P.W. 5 R.I. Berhampore P.S. had received one improvised musket having 41 inches length, bore 303 in good working condition who examined the same as an expert and proved his report Exhibit-3 and the improvised musket as MAT. Exhibit-1.
Although prosecution witnesses viz, P.W. 4, P.W. 6, P.W. 7 have been declared hostile but proved their signature on the seizure lists. It is evident from the evidence of S.I. Subrata Mazumdar P.W. 8 and P.W. 9 that after examination by expert, report together with material Exhibit-I was received.
Dr. D.K. Kuila P.W. 10 Scientific Officer of Government of India of CFSL deposed that on 03.10.2002 his office received 6 sealed paper packets as Exhibit- A, B, C, D, E and F in connection with Domkal P.S. case no. 118/2002, dated 19.9.2002 which were subsequently marked in his laboratory as 1081A, 1081B, 1081C, 1081D, 1081E and 1081F respectively. The sealed paper packet marked as 1081A contained some white coloured crystalline materials. The sealed paper packet marked as 1081B contained some orange coloured crystalline materials. The sealed paper packet marked as 1081C contained some white coloured crystalline materials. The sealed paper packet marked as 1081D contained some orange coloured crystalline materials. The sealed paper packet marked as 1081E contained some white coloured crystalline materials. The sealed paper packet marked as 1081F contained some white coloured crystalline materials.
The expert report of CFSL Exhibit- 6 dated 29.11.02 reveals his opinion that active ingredients were present in extracts from exhibits marked as 1081A, 1081C and 1081E was Potassium Chloride being one of the main ingredient of low explosive mixture. Active ingredients present in extracts from exhibits marked as 1081B, 1081D and 1081F was Arsenic Sulphide- one of the main ingredient of low explosive mixture.
According to S.I. Subrata Mazumdar, P.W. 8 along with O.C. Shankar Roy Chowdhury, home guard Swapan Mondal, P.W. 3 and Badal Pal P.W. 1 and others had left police station at about 01.05 hours at night on 18.9.2002 for Shambhunagar Village where O.C. had held the raid and corroborated the fact of raid conducted at the place of the appellants/accused persons. He deposed that musket material Exhibit- 1 was identified by him but he has found no seal and labels on the seized arms and it contained a blank bullet but the said seized musket was not produced before him at the time of trial. During cross examination P.W.8 admitted that no panchayat officer or pradhan or chowkidar was called at the time of seizure when the articles were seized at that hour of night and also stated that there are other muskets in police station Malkhana in connection with other P.S. case.
Thus, in respect of charge under Section 25(1)B of Arms Act, learned Trial Judge was of the finding that identity of the musket in question was in doubt in view of the fact that seizing officer himself and arms expert could not identify the seized articles whether the same arms was seized or examined. So it was very difficult to say that the said article was at all produced in Court, thereby the learned Court rightly gave benefit of reasonable doubt as regards seizure of the said arms and rightly acquitted the appellant Khalil Sk. of the charge under Section 25(1)B of Arms Act.
It would appear from the seizure list and the evidence on record that P.W. 1 is a witness to the seizure who has corroborated the seizure of the explosive although Swapan Mondal, P.W. 3 was tendered for cross-examination and Md. Chairuddin Sk., P.W. 4; Jamshed Sk, P.W. 6; Md. Mojiber Ali P.W. 7 were declined hostile whereas P.W.3 was simply tendered before the Trial Court.
However, the learned Trial Judge having regard to the seizure of huge quantity of explosive substance and taking into consideration of the evidence of P.W. 1, P.W. 2, P.W. 9, evidence of expert P.W. 10 and the evidence of P.W. 11 the I.O. and having given an anxious consideration to the facts and circumstances of the case, has rightly arrived at a finding that the appellants were guilty of the charge under Section 9B of Explosive Act liable to be convicted thereunder by his detailed judgment.
Bearing in mind the whole object of Section 313 of the Code and on scanning the incriminating evidence in respect of the seizure of the explosive substance from the possession of the appellants, the question no. 2 put to the appellants during their examination under Section 313 of the Code of Criminal Procedure, in my considered view, specific and separate question, not being rolled up or string together a long series of facts, was asked from the respective appellants in so far as quantum of possession of the explosive was found on evidence.
It would be apt to rely on a decision of Apex Court in case of Mohammad Usman Mohammad Hussain Vs. State of Maharashtra reported in AIR 1981 SC 1062:1981 SCR(3)68 wherein it has been held that in order to bring home the offence under Section 5 of the Explosive Substances Act, the prosecution has to prove:(i) that the substance in question is explosive substance; (ii) that the accused makes or knowingly has in his possession or under his control any explosive substance; and (iii) that he does so under such circumstances as to give rise to a reasonable suspicion that he is not doing so for a lawful object.
It is settled law that the burden of proof of charge levelled against the appellants is on the prosecution but the moment prosecution has discharged that burden, it shifts to the accused to show that he was making or possessing the explosive substance for a lawful object, if he takes that plea but in this case appellants have not taken such a plea of lawful object for the possession of the explosive substance.
It is axiomatic from the expert report of scientific officer of CFSL and his evidence on record that the articles under the seizure list recovered from the appellants were "explosive substances" within the definition of Section 2 of the Explosive Substances Act and the possession of the explosive substances by the appellants were without any authority since the appellants had no licence or authority to make or possess the explosive substances as no such licence possessed by them has been produced in Court.
In the context of my findings above, I do not find any ground to interfere with the impugned judgement of conviction passed by the learned Judge, however, considering one of the main ingredient of low explosive mixture, I am inclined to reduce the sentence of S.I. for 2 years to a period of one year simple imprisonment.
Accordingly, the appeal is dismissed with the above modification of order of sentence.
Let a copy of this judgment together with the LCR be sent down to the learned Trial Court forthwith for information and needful action. The appellants are already in jail custody serving sentence. So, an extract of this judgment be sent to the Superintendent Correctional Home concerned for information for doing the needful and also to set off the period of detention undergone by the appellants as per the provision of Section 428 Cr.P.C.
Urgent certified Photostat copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(SHIVAKANT PRASAD, J.)