- (1.) The present appeal is directed against the judgment of the Calcutta High Court dated 21st November, 2006 in exercise of its criminal appellate jurisdiction vide which the High Court affirmed the judgment of conviction and the order of sentence passed by the Trial Court.
(2.) Before dealing with the rival contentions raised by the learned counsel appearing for the parties, it is necessary for the Court to notice the case of the prosecution in brief. On 19th December, 1984, amongst other villagers of village Lauria, Yamin PW8 and Mohammed Sadak Ali, PW1 hired a pump set of one Humayun Kabir, who was examined as PW7, for taking water from the pond known as Baro Lauria Pukur for irrigating their respective lands. PW8, Yamin and others drew water from the said pond. In the afternoon, when Mohammed Sadak Ali, PW1, and his brother, the deceased Samim Ali, went on the bank of the said tank for drawing water through the said pump, accused Yanab arrived there. He had an altercation with Mohammed Sadak Ali and Samim Ali which related to drawing of water from the tank. Though, PW1 had assured Yanab that they would stop taking water from the Pukur within a short time, yet Yanab forcibly switched off the pump machine. This further aggravated their altercation and accused started abusing them. Thereafter, accused Yanab suddenly went running to his house and came back within a few minutes along with the other accused named Najrul. Yanab then threw a bomb aiming at Samim Ali which hit him on his chest and exploded. As a result thereof, Samim fell onto the ground, his clothes got burnt and he died instantaneously. It is also the case of the prosecution that Najrul had a cloth bag in his hand and Yanab took out the bomb from that cloth bag and threw the same towards Samim. Immediately after the incident, both the accused persons fled away. With the help of the villagers, Mohammed Sadak Ali took Samim to his house which was stated to be at a short distance from the bank of the tank. The information with regard to the incident was given to the Rampurhat Police Station through telephone. SI R.P. Biswas, PW14, along with SI Samit Chatterjee, PW15, arrived at village Lauria around 10.00 p.m. on 19th December, 1984. The telephonic information, on the basis of which the G.D. Entry No.708, Ex.7, was lodged was made by PW6 from a phone booth. After these officers arrived, PW1, Sadak Ali submitted a written complaint, Ex.1, addressed to the Officer Incharge of Rampurhat Police Station. SI, R.P.Biswas, then made an endorsement, Ex.1/1 and sent the same through Constable Sunil Dutta to Rampurhat Police Station for starting a case under Sections 148/149/324/326/302 of the Indian Penal Code (for short 'IPC') and 9(b)(ii) of the Indian Explosives Act. Ex.1 was received at the police station by SI B.Roy. Upon this, a formal FIR, Ex.1/3, was registered and the investigation was started by PW14. He prepared the Inquest Report, Ex.2, over the dead body of the deceased on identification of the same by his brother, PW2. The sketch map of the place of occurrence, Ex.8, was prepared. The pump set was seized vide seizure list Ex.5 and a Zimma Nama Ex.6 was prepared. PW14 also collected the post mortem report of the deceased from the Sub-Divisional Hospital, Rampurhat on 21st January, 1985. Because of transfer of PW14, the investigation of the case was taken up by SI, N.R. Biswas. Later on the investigation was also completed by PW15, S. Chatterjee, who had filed the charge sheet. The accused persons faced the trial for the above-mentioned offences before the Court of Sessions, which by a detailed judgment dated 18th September, 1992, held them guilty of the offences and punished the accused Yanab as follows: "I, therefore, hold and find accused Yanob not guilty to the charge under section 324 of the I.P.C. and he is acquitted of that charge. As regards the charge under section 9(b)(ii) of the I.E. Act there is no evidence that accused Nazrul had in his possession bombs which were explosives in nature without any license or permit and as such he is found not guilty to the said charge and is acquitted. My findings are that accused Yanob threw the bomb which exploded on the chest of Samim causing his instantaneous death and as such it must be held that Yanob was in possession of explosive substance without any license or permit. Exts. 9 and 9/1 the reports of the Deputy Controller of Explosives go to establish that the remnants of the exploded bomb that was seized by PW14 and sent to him by C.S. witness NO.23 in sealed packets contained an explosive mixture of chlorate of potassium and sulphate of arsenic and such a bomb would be capable of endangering human life on explosion and it has been established from the evidence on record that it has not only endangered human life but brought a premature end of the life of a human being and as such I hold and find accused Yanob guilty to the charge under section 9(b) (ii) of the I.E. Act and he is convicted thereunder. In the result the prosecution case succeeds in part. Accused Nazrul is found not guilty to both the charges brought against him and is acquitted under section 235(1) Cr.P.C. Accused Yanob Sk is found guilty to the charge u/s 302 of the I.P.C. and under section 9(b)(ii) of the I.E. Act and is convicted under both the counts of charges. He is, however, found not guilty to the charge under section 324 I.P.C. and is acquitted of that charge. Sd/- P.K. Ghosh, Addl. Sessions Judge, Birbhum at Rampurhat, 18th September, 1992. Heard accused Yanob on the point of sentence. The accused refuses to say anything or to make any submission on the point of sentence. Since no lesser than imprisonment for life can be imposed in an offence under section 302 I.P.C., the accused Yanob Sk is sentenced to imprisonment for life for the conviction under section 302 I.P.C. No separate sentence is being passed for the conviction under Section 9(b)(ii) of the I.E. Act. Let a copy of this judgment of conviction and sentence be supplied free of cost to the convict accused Yanob Sk. as early as possible. Sd/- P.K. Ghosh, Addl. Sessions Judge, Birbhum at Rampurhat, 18th September, 1992."
(3.) Aggrieved from the above judgment, the convicted accused, Yanab Sheikh, preferred an appeal before the High Court which came to be dismissed vide the impugned judgment, giving rise to the present appeal. While raising a challenge to the impugned judgment, the learned counsel for the appellant contended: 1. Ex.1/3 is a second FIR of the occurrence. Ex.7, the G.D. Entry No. 708, lodged at 2105 hrs. on 19th December, 1984 at Police Station Rampurhat by PW6 is, in fact, the FIR. The second FIR, Ex.1/3, is neither permissible in law and in fact, is hit by the provisions of Section 162 of the Cr.P.C. (for short 'Code'). Thus, the entire case of the prosecution must fall to the ground. 2. The copy of the FIR was sent to the Court of SDJM after ten days of the date of occurrence and, therefore, is violative of Section 157(1) of the Code, on which account the appellant would be entitled to a benefit. 3. The prosecution has not examined all the witnesses without specifying any reason. Therefore, adverse inference should be drawn against the prosecution. There are material discrepancies and variations in the statements of the witnesses. Even the injured witnesses were not examined. For these reasons, the case of the prosecution must fail. 4. The acquittal of Najrul by the Trial Court should necessarily result in acquittal of the present appellant as well, because without attributing and proving the role of Najrul, the appellant could not be held guilty of committing any offence. 5. Lastly, it is contended that the offence squarely falls under Section 304, Part II of the IPC inasmuch as it was a fight that took place all of a sudden and resulted in the death of the deceased. There was no pre-meditation or intent to murder the deceased. ;