SK. DIPU @ DIPUA SK NAZIR HOSSAIN vs THE STATE OF WEST BENGAL

Joymalya Bagchi, J

The appeal is directed against the judgement and order dated 11.09.2002 passed by the learned Additional Sessions Judge, First Court, Hooghly in

Sessions Trial Case No.01 of 2001 convicting the appellant for commission of offences punishable under Sections 302/307 of the Indian Penal Code

and sentencing him to suffer R.I. for life and to pay a fine of Rs.25,000/- and in default of fine to suffer further R.I. for two years more for the

offence punishable under Section 302 of IPC. No separate sentence was awarded in respect of Section 307.

Prosecution case as alleged against the appellant is to the effect that on 16.10.1993 around 12 noon one Gopal Sharma, P.W.1 was in his saloon at

B.M. Road, Champdani, under Bhadreswar P.S. At that time, Nareh Gupta, P.W.5 was unloading briquettes from a lorry. One Rajesh was also there.

Appellant who has also a resident of B.M. Road came in front of his saloon and threw a bottle bomb towards Suresh Gupta (brother of P.W.5) which

did not burst. Thereafter appellant threw another bomb which caused injuries on Suresh as well as upon Gopal. Rajesh also sustained injuries. Then

the appellant fled away. P.W.5 came to the spot and hired a rickshaw van and took Suresh and Gopal to Champdani main road and from there the

injured persons were taken in an ambulance to Chandannagar S.D. Hospital. Suresh was declared dead. On the statement of Gopal Sharma,

Bhadreswar P.S. case no.236 dated 16.10.1993 under Section 326/307/302 of IPC and under

Section 9 (b)(ii) of the Indian Explosives Act was registered for investigation. In conclusion of investigation, charge sheet was filed against the

appellant and the case being a sessions triable one was committed to the Court of Sessions and transferred to the Court of Additional Sessions Judge

for trial and disposal. Charges were framed under Sections 307/326/302 of the Indian Penal Code against the appellant and the same was read over

and explained to him. The appellant pleaded not guilty and claimed to be tried.

In the course of trial, prosecution examined 15 witnesses and exhibited a number of documents to prove its case.

The defence of the appellant was one of innocence and false implication. It was the specific defence of the appellant that he had married a Hindu girl

and due to such inter faith rivalry he was falsely implicated in the instant case. He examined one witness as D.W.1 in support of such plea.

In conclusion of trial, the trial judge by the judgment and order dated 11.09.2002 convicted and sentenced the appellant, as aforesaid.

Nobody appears on behalf of the appellant.

Ms. Amita Gaur, the learned counsel is requested to appear as amicus curiae in the instant case.

Ms. Gaur, learned amicus curiae argued that P.W.1, defacto complainant has not supported the prosecution case. Evidence of P.W.5 & 6 who claim

to be eyewitnesses are highly improbable. It is also submitted that there was no motive to commit the murder and there was enmity due to inter

religious marriage between the appellant and a Hindu girl. She, accordingly, prayed for acquittal of the appellant.

On the other hand, Mr. Panda, the learned counsel along with Mr. Bhakat argued that evidence of P.W.5 & 6 the eyewitnesses clearly establishes the

prosecution case beyond reasonable doubt. Their evidence is corroborated by other witnesses as well as the medical evidence. Hence, the appeal is

liable to be dismissed.

It is true Gopal Sharma, the defacto complainant P.W.1 did dot support the prosecution case and was declared hostile. Nonetheless, he admitted that

Suresh Gupta died due to bomb blast injury and was transferred to hospital at Chandannagar. He, however, claimed that he did not see who hurled the

bomb. He admitted that he was interrogated by police and gave a statement. He proved his statement (Ext.1). He claimed that the statement had not

been read over and explained to him. Hence, Gopal Sharma admitted that the victim had died due to bombs blast injuries.

P.W.2 & 3 also did not support the prosecution case and were declared hostile. They, however, admitted that the victim had suffered bomb injures at

the place of occurrence and had died.

P.W.5, Naresh Gupta is the brother of the victim. He deposed that the incident took place on 16.10.1993 at 12 noon. He was talking to Jitendra

Prasad near the saloon when his lorry was being unloaded. He saw appellant hurl bomb into the saloon of Gopal Sharma. Seeing this he fled away. On

going home he searched for his brother Suresh Gupta but could not find him. When he came back to the spot a person informed him that Suresh had

received bomb injuries. He went to the saloon and found his brother was struggling with death. He carried his brother in a rickshaw to Champdani

T.O.P. Thereafter as per direction of police he shifted his brother to Chandannagar S.D. Hospital in an ambulance for better treatment. The doctor

declared him dead.

P.W.6, Hiralal Shaw deposed that he had a Pan-bidi shop on B.M. Road, Champdani. He knew Suresh Gupta who is dead due to bomb blast injuries.

The incident took place around 12 noon. At the time he was sitting in his shop. He saw that the appellant hurl bomb into the saloon of P.W.1. There

was a panic in the locality after bursting of bomb and he fled away from the spot. He informed by Naresh Gupta, P.W.5 that his brother had suffered

injury in the saloon of Gopal Sharma. Naresh Gupta took his brother to the hospital. Gopal Sharma and Rajesh also received bomb blast injuries.

In cross-examination, he stated that the accused threw bomb from the road into the saloon. He was at a distance of 2/3 cubits from where the

accused threw bomb towards the saloon.

P.W.10, Md. Abul Karim is the driver of lorry bearing no. WHA 7065. He knew the victim. He had carried the briquettes of the victim at B.M. Road,

Champdani from Bihar. Around 11 A.M, he was unloading briquettes. He was inside the lorry. He heard a sound of bursting of bombs and saw

persons were fleeing away from the spot. He also fled away. After sometime he heard that Suresh Gupta was injured and had died by bomb injuries.

P.W.4, Himangshu Roy is the doctor who treated Gopal sharma (P.W.1) at Chandannagar, S.D. Hospital. He found splinter injuries all over his body.

Victim stated that the injuries sustained by him was due to bomb blast which had been hurled by the appellant. He proved the injury report (Ext.3). He

also examined one Suresh Gupta who had been brought dead to the hospital. He proved the medical report to Suresh Gupta.

P.W.14, Santi Kumar Ghosh is another doctor who held the post mortem over the dead body of Suresh Gupta. He found the following injuries:

“Injury 10†X 10†X 4†would with bleeding around the wound in the middle of the back of the muscle which are more or less lacerated in

nature. Bleeding present in a scattered manner.

He opined that the death was due to abovmentioned injuries which were ante mortem in nature and as per inquest report was due to bomb and

homicidal in nature.

In cross-examination, he stated that in Ext.4 he has not mentioned how and where the patient received injury. He gave opinion after going through the

inquest report. He did not find burn injury on the body of the victim.

P. W.7, Ananth Bandhu Ghosh is a S.I. of Police attached toChandanangar P.S. on 16.10.1993. He held inquest over the dead body of the victim.

He proved the inquest report (Ext.5).

P.W. 8, Swapan Bhattacharjee a constable attached to Chandernagore P.S. who signed on the inquest report and took the dead body for post mortem

examination.

P.W.15, N.C. Samanta was the investigating office in the instant case. He received written complaint, drew up formal F.I.R. and drew rough sketch

map with index of the place of occurrence (Ext.10). He examined witnesses and seized the broken pieces of glass containing remnants of bomb

explosion, some pieces of pin containing substances from exploded bomb, a pair of old chappal, some blood stained earth and an old wooden bench

stained with blood under a seizure list (Ext.2/1). He collected post mortem report as well as inquest report and he sent the blood stained wearing

apparels of the victim and blood stained earth seized from the place of occurrence for FSL examination. He arrested the appellant and submitted

charge sheet.

In cross-examination, he admitted that appellant had married a Hindu girl. A criminal case was started over that marriage. There was no tension in the

locality and the said case had ended in a final report as to mistake of fact. He did not collect the F.S.L. report in connection with this case and did not

sent the pair of chappal seized by him to Foot Print Expert. He did not seize any live bomb during the investigation of the case.

D.W. 1, Md. Nizam deposed that the appellant had married the daughter of Bhola Show who was a Hindu. P.W.5 & 6 threatened the appellant that

they would teach him a good lesson for marrying a Hindu girl. There was tension in the locality over the marriage.

In cross-examination, he admitted that the appellant was accused in the murder case of one Bholanath Bhaduri.

From the aforesaid evidence, it appears that P.W.5 was unloading briquettes from the lorry when the incident occurred. He saw the appellant throw

bomb inside the saloon of P.W.1. He fled away. Later on returning to the place of occurrence he was informed by P.W.6 that due to such bomb blast

his brother Suresh Gupta had been injured and P.W.1 and one Rajesh had also suffered bomb blast injury. P.W.5 took his brother to Chandernagar

S.D. Hospital where he was declared dead P.W.1 was also treated at the said hospital by P.W.5. P.W.6 is the owner of a Pan-bidi shop which is

situated in front of the saloon of P.W.1. He deposed that on the fateful day appellant threw bombs at the shop of the P.W.1. As a result Suresh

Gupta, P.W.1 and one Rajesh were injured. P.W.6 informed P.W.5 about the incident and thereafter P.W.5 shifted his brother to the hospital where

he was declared dead. The evidence of the aforesaid eyewitnesses is substantially corroborated by the hostile witnesses also. P.W.1 admitted that the

victim suffered bomb blast injury resulting in his death. He also admitted that the written complainant lodged by him at P.S. In court, however, he

could not name the miscreant who threw the bombs at the victim. P.W.4 the doctor who treated the P.W.1 in the hospital, proved the injury report

wherefrom it appears that P.W.1 had narrated to him that the appellant had thrown bomb causing injuries on his person. Evidence of hostile witness

P.W.1,therefore, leads credence to the versions of P.W.5 & 6 that the appellant threw bombs into the saloon of P.W.1 causing grievous injuries on the

victim as well as P.W.1.

Medical evidence of P.W.4 and that of Autopsy Surgeon, P.W.14 also corroborate such version. Autopsy Surgeon found injuries on the victim and

upon perusing the inquest report opined that injuries were due to bomb blast. It has been argued that P.W.14 did not find blackening on the injuries of

the victim. Evidence has come on record that the appellant had thrown bomb from the road into the saloon of P.W.1 resulting in death of the victim.

In view of such fact, as the bombs were thrown from a distance it is possible that blackening around the injuries may not be noticed. P.W. 15 has

seized broken pieces of glass and remnants of bombs from the place of occurrence. Failure to seize live bomb which did not burst may be remissness

in investigation which does not affect the kernel of the prosecution case which is established by the ocular versions of P.W.5 & 6 as corroborated by

the medical evidence, P.W. 4 & 14.

Accordingly, conviction and sentence of the appellant are upheld.

Appeal is dismissed.

The period of detention, if any, undergone by the appellant during investigation, enquiry and trial shall be set off against the substantive sentences

imposed upon him in terms of section 428 Cr.P.C.

Let a copy of this judgment along with the lower court records be forthwith sent down to the trial court at once.

Photostat certified copy of this judgment, if applied for, shall be made available to the appellant within a week from the date of putting in the requisites.