ANIRUDDHA BOSE,J. - (1.) Both these appeals are directed against a judgment of conviction delivered by a Division Bench of the High Court at Calcutta on 5th February, 2009 finding the appellants guilty of offences under Part-I of Section 304 read with Section 149 of the Indian Penal Code as also under Section 148 thereof. The appellants in the Criminal Appeal No.1431 of 2013 are Dilip Shaw @ Sanatan and Uttam Shaw. In Criminal Appeal No. 1430/2013, there are three appellants, Paresh Shaw @ Parash, Gopal Prosad Sarkar @ Phatik and Mohd. Kayum Khan. Paresh and Gopal have been found guilty, in addition to the aforesaid provisions of the Code, under Section 9-B (2) of the Explosives Act, 1884. The Division Bench reversed the judgment of acquittal passed on 29 th April, 1987 by the Additional Sessions Judge, First Court, Howrah in Sessions Trial Case No. XXI (4) of 1985. The appellants have been sentenced to undergo rigorous imprisonment for 10 years and pay fine of Rs. 5000/- each. In default of payment of fine, they have been directed to suffer further rigorous imprisonment for a period of one year in the judgment under appeal. The High Court did not award any sentence for offences other than part I of Section 304 read with Section 149 of the Code, considering award of said punishment as the rest were lesser offences. At the time the petitions for Special Leave to Appeal was instituted, one of the main grounds relied upon by the petitioners in support of the appeal was that the copy of the judgment of the Division Bench was not available. But the copy of the judgment of the Division Bench has been annexed to the counter-affidavit filed by the State marked annexure "R-9." The appellants had also subsequently been supplied the certified copy of the judgment impugned. Because of this reason, applications were taken out by the appellants in both the appeals for raising additional grounds in support of the respective criminal appeals. In this judgment, we have considered these additional grounds. Arguments at length have been advanced before us on behalf of the appellants on the basis of the judgment under appeal.
(2.) The origin of the case lies in an incident that took place on 25th March, 1981, resulting in death of one Gurdev Singh and injuries to several members of his family. It has been recorded in the judgment of the Division Bench that there was past enmity between the family members of the deceased and his assailants. On behalf of the appellants, it was submitted that there was no basis for referring to past enmity by the High Court. From the evidence of a prosecution witness Jagar Singh (P.W.8), we find that appellants Paresh and Gopal were witnesses in a case in which said Jagar was an accused. It has been stated by Jagar in his cross-examination that in the said case, allegation was that Jagar and his brother had assaulted Nageswar. This fact, in our view, could lead to the inference of there being past enmity between the respective families.
(3.) Prosecution version of the case is that in the morning, at about 7.30 A.M. on 25th March 1981, a boy had come to the residence of Sarban Singh (P.W. 6) and reported that someone had come to see him. Sarban then went out of his residence and met the visitor nearby. That visitor happens to be one Suresh Rampuria, who was also a prosecution witness (P.W.5). He was, however, declared hostile. Suresh had some business relationship with a member of the family of the deceased. While these two individuals were talking to each other, around 14/15 persons surrounded Sarban and started assaulting him. The location of the place of occurrence was Belilious Road in Howrah. The residence of the family of the victims is on a lane adjacent to Belilious Road, though the street address of the victims' residence is 326/1, Belilious Road. The area where victims reside is known as "Vistipara". In the Trial Court's judgment, the distance of the victims' house has been recorded to be about 40-45 ft. from the main road (i.e. Belilious Road). On hearing Sarban's cries for help, his family members rushed to the location and rescued him. Sarban (P.W. 6) deposed that Hadis, one of the accused persons tried to assault him with a knife, but on intervention of his brother Jagar (P.W.8), he was saved as the P.W.8 snatched away the knife from Hadis. It also forms part of the complaint of the victims' family that Kayum had snatched away Sarban's wrist watch at that time. When Sarban was returning to his home with rest of the family members, a bomb was thrown from the rear side which landed in front of Bimla. Said Bimla is wife of Jagar (P.W.8) and has deposed as the P.W. No. 3 at the trial. A second bomb was also hurled at the group comprising of the family members of the deceased. That bomb exploded behind Gurdev Singh and caused injuries to him at that point of time. He had fallen down. Four other family members of Gurdev were also injured. They were Bimla (P.W.3), Jaswinder (P.W.4), Sarban (P.W.6) and Jagar (P.W.8). On hearing the sound of explosion, one Sakaldeo Singh (P.W.13), a head constable who was at a nearby police outpost reached the place of occurrence with some other police personnel. He found remnants of the bomb on the ground as also drops of blood at the place of occurrence. From deposition of Niranjan Dey (P.W.22), who at the material time was a Sub-Inspector with Howrah Police Station, it transpires that communication was received by the police station from the said police outpost and he had rushed to the spot with police force. He reached there at about 8 A.M. He found six persons injured from bomb explosion. He arranged for their removal to Howrah General Hospital and recorded the statement of Piyara Singh (P.W.1). The First Information Report was registered on the basis of statement given by said Piyara Singh, a member of the same family. An ambulance was pressed into service by the police and the injured persons were taken to Howrah General Hospital for treatment. Among those injured, Gurdev was referred to S.S.K.M. Hospital, Kolkata. Said Gurdev succumbed to his injuries on the next day i.e. on 26 th March, 1981. Another police witness, Kashiswar Majumdar (P.W.14) in his deposition has broadly given the same version about the location, sound of explosion and the remnants of bombs (he described them as splinters).;