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2023 DIGILAW 179 (CAL)

Salim Khan @ Mona v. State of West Bengal

2023-02-06

AJAY KUMAR GUPTA, JOYMALYA BAGCHI

body2023
JUDGMENT Joymalya Bagchi, J. 1. Appeal is directed against the judgment and order dated 26.03.2018 and 27.03.2018 passed by the learned Additional District & Sessions Judge, 14th court, Alipore, South 24 Parganas, in Sessions Trial No. 04(04)2007 arising out of Sessions Case No. 17(8)2006 convicting the appellant for commission of offence punishable under Section 304 Part II of the Indian Penal Code read with Sections 3/4 of the Explosive Substance Act and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- only, in default, to suffer further simple imprisonment for six months for the commission of the offence under Section 304 Part II of the Indian Penal Code also to suffer rigorous imprisonment for seven years and also to pay fine of Rs.8,000/- only in default to suffer further simple imprisonment for three months for commission of offences punishable under Sections 3 and 4 of Explosive Substances Act. Both sentences to run concurrently. 2. Prosecution case as alleged against the appellant is to the effect that on 09.04.2006 at around 6.45p.m., one Ashim Raja, a boy of nine years was playing. At that time a bomb blast occurred at premises No. P-121A, Khansamapara, Garden Reach, Kolkata – 700024. Another person viz. Reshma Begum also died due to the bomb blast. On the basis of the written complaint lodged by father of Ashim Raja i.e. Alam Khan (PW – 1) Metiabruz Police Station Case No. 32 of 2006 dated 09.04.2006 under Section 304 of the Indian Penal Code and Sections 3/4 of the Explosive Substance Act was registered. 3. In the course of investigation, statements of the witnesses were recorded. Inquest reports were prepared over the bodies of Ashim Raja and Reshma Begum. Post mortem reports were collected. Articles were seized from the house and were sent for EFSL examination. Sanction order was obtained. Appellant was arrested and charge-sheet was filed. 4. Charges were framed under Section 304 of the Indian Penal Code and under Sections 3/4 of the Explosive Substance Act. In the course of trial, prosecution examined nine witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. 5. In conclusion of trial, learned trial Judge by impugned judgment and order dated 26.03.2018 and 27.03.2018 convicted and sentenced the appellant, as aforesaid. 6. In the course of trial, prosecution examined nine witnesses and exhibited a number of documents. Defence of the appellant was one of innocence and false implication. 5. In conclusion of trial, learned trial Judge by impugned judgment and order dated 26.03.2018 and 27.03.2018 convicted and sentenced the appellant, as aforesaid. 6. Appellant has filed informal paper books and the appeal is taken up for hearing. 7. Learned Counsel for the appellant submits there is no evidence that the appellant had kept explosives in the house. Involvement of the appellant in the offence is based on surmises. He prays for acquittal. 8. Learned Counsel for the State submits appellant was the son of the owner of the premises. He had criminal antecedents. He occupied the first floor of the house and stored explosive substances therein. He had knowledge that the explosion of bombs was likely to cause death. Hence, the prosecution case is proved beyond doubt. 9. PW 1 (Alam Khan) is the de facto complainant and father of one of the victims viz. Ashim Raja. He deposed on 09.04.2006 at about 6 to 6.30 P.M. there was a bomb blast in the house having premises No. P-121A, Khansamapara, Garden Reach, Kolkata – 700024. His son was playing and died due to bomb blast. He was not present at the spot. He went to the hospital. He lodged FIR and signed on the inquest report. 10. PW 2 (Md. Sohil) is the father of the other victim viz. Reshma Begum. He deposed his married daughter had come to his house for a visit. A bomb blast took place. As a result, the entire roof of his kitchen was blown away. His daughter died at the spot. Appellant kept bombs at his residence. He signed on the inquest report of his daughter. During cross-examination, he stated he was a tenant in the house. Appellant was the son of the owner of the house. 11. PW 3 (Shanwaz Alam) is the husband of Reshma Begum. He deposed his father-in-law occupied the ground floor of the house. Appellant used to reside on the first floor of the house. There was a bomb blast on the first floor of the house. As a result his wife, Reshma and one child died. He had come out of the house when the incident occurred. He made statement before the learned Magistrate. Appellant used to reside on the first floor of the house. There was a bomb blast on the first floor of the house. As a result his wife, Reshma and one child died. He had come out of the house when the incident occurred. He made statement before the learned Magistrate. He also signed on the inquest report. 12. PW 5 (Sazada Alam) is the brother of Reshma. He deposed first floor of the house was occupied by the appellant. Roof of ground floor collapsed due to bomb blast. As a result Reshma Begum died. Another boy viz. Ashim Raja also died. He was signatory to the seizure list prepared by the police. 13. PW 6 (Sk. Jafar Nawaz) is the scribe to the FIR submitted by PW 1. He proved the written complaint treated as FIR (Exbt. –1). 14. PW 8 (Mumtaz Begum) is the sister-in-law of the appellant. She deposed on the fateful day she had gone to bring atta (flour) from a local shop. When she returned she found that roof of the ground floor had collapsed and a woman and a boy had died. The woman and the child were tenants under her father-in-law, Noor Hakim Khan. Appellant was her brother-in-law who was residing in the first floor of the flat. Floor of the flat of the appellant had collapsed due to bomb blast. She was interrogated by the police. She signed on the seizure list. 15. PW 9 (Dilip Paul) is the first investigating officer. He proved the formal FIR marked as Ext.-8. He took up the investigation and went to the place of occurrence. He held inquest over the body of Ashim Raja and Reshma Begum. He seized articles from the place of occurrence under seizure list marked as Ext.-9. He prepared sketch map of the place of occurrence. He sent the dead bodies for post mortem examination. CFSL team had visited the place of occurrence. As per instructions of CFSL team, he seized some articles from the place of occurrence and prepared a seizure list marked as Exbt.-4/1. He sent the seized articles to EFSL for examination. He took photographs at the place of occurrence. He tried to arrest the accused but failed. He forwarded the witnesses for recording their statements under Section 164 of the Code of Criminal Procedure. He arrested the appellant and received report of EFSL. He sent the seized articles to EFSL for examination. He took photographs at the place of occurrence. He tried to arrest the accused but failed. He forwarded the witnesses for recording their statements under Section 164 of the Code of Criminal Procedure. He arrested the appellant and received report of EFSL. He obtained sanction order from the District Magistrate, South 24 Parganas marked as Exbt.-16. Upon his transfer Tapan Kumar Dutta had handed over the case for further investigation. He submitted charge-sheet. 16. PW 7 (Dr. Dilip Kumar Kuila) was the Scientific Officer. He examined the seized samples and found that crude explosive substance along with different splinters were kept at the mezzanine floor of the room which exploded and caused damaged to surrounding rooms and roof of the mezzanine floor. He proved the report as Exbt.-5. He also proved the report with regard to the inspection of the place of occurrence marked as Exbt.-6. 17. From the aforesaid evidence it appears that the premises bearing no. P-121A, Khansamapara, Garden Reach, Kolkata – 700024, was owned by one Noor Hakim Khan, father of the appellant. PW. 8, sister-in-law of the appellant stated appellant occupied one of the rooms on the first floor. On 09.04.2006 a bomb blast occurred in the said room. The floor of the room of the appellant had collapsed and daughter of PW 2 viz. Reshma Begum expired. A young boy viz. Ashim Raja who was playing also expired. Inquest as well as post mortem report show that the said victims died due to injuries arising out of an explosion which is ante mortem and homicidal in nature. Report of the forensic expert also shows explosive substance with different splinters were kept in the mezzanine floor of the house which had exploded resulting in collapse of the floor of the said room. These overwhelming evidence on record leaves no doubt in one’s mind that explosives were kept in the room occupied by the appellant. Those explosives had been illegally stored and had exploded. As a result, the floor of the said room collapsed and Reshma Begum and Ashim Raja died. It is strenuously argued nobody saw the appellant storing the explosives. Prosecution has successfully proved that explosives were illegally stored in the room which was in the possession and control of the appellant. Those explosives had been illegally stored and had exploded. As a result, the floor of the said room collapsed and Reshma Begum and Ashim Raja died. It is strenuously argued nobody saw the appellant storing the explosives. Prosecution has successfully proved that explosives were illegally stored in the room which was in the possession and control of the appellant. In the light of the aforesaid evidence, onus shifts on the appellant to explain how the explosives came to be stored in his room. He has singularly failed to discharge such onus. No document supporting illicit possession of explosives has also been placed on record. Irresistible conclusion from the aforesaid materials is that it was none but the appellant who had illegally stored a large volume of explosives in his room. Appellant had knowledge that the explosives may burst which is likely to cause death of the inmates of the house. Hence, his act falls within Section 299 of the Indian Penal Code. His conviction and sentence under Section 304 Part II and under Sections 3/4 of the Explosive Substances Act is accordingly upheld. 18. The appeal is, accordingly, dismissed. In view of dismissal of the appeal connected application is also dismissed. 19. Period of detention suffered by the appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon her in terms of Section 428 of the Code of Criminal Procedure. 20. Let a copy of this judgment along with the lower court records be forthwith sent down to the trial Court at once. 21. Photostat certified copy of this judgment, if applied for, shall be made available to the appellant upon completion of all formalities. Ajay Kumar Gupta, J. I agree.