Sk. Eshaque, Sk. Ishahaque & Ors @APPELLANT@Hash State of West Bengal

Rajarshi Bharadwaj, J.

Both the appeals arose out of a common judgement and order dated 31st July, 2006 passed by the learned Additional Sessions Judge, Fast Track (1st

Court), Uluberia, Howrah in Sessions Trial Case no. 521 of 2004 convicting the appellants under Sections 326/149/148 of the Indian Penal Code and

sentencing them to suffer rigorous imprisonment for 4 years each and also to pay a fine of Rs. 1000/- each; in default to suffer simple imprisonment

for one year each for the offence punishable under Section 326 of the Indian Penal Code and further sentencing them to suffer rigorous imprisonment

for one year each and also to pay a fine of Rs. 500/- each; in default to suffer simple imprisonment for six months each for the offence punishable

under Section 148 of the Indian Penal Code and directing both the sentences imposed on each of the appellants run concurrently.

The prosecution case in short is that on 11th July, 1992 at about 10.30/11.00 hours while Rejjak Mallick and Ayub Mollah went to cultivate the land

belonging to the mother of accused Abubakkar Mollah under thika system with their power tiller, the daughter of accused Abubakkar namely, Anima

Khatoon raised her protest. At that time, accused Zakir Mallick, Sk. Ishahaque, Abubakkar, Keyamat, Asmat, Rabial, Asgar, Khatib, Ayesha, the wife

of Zakir and the wife of Ishahaque and some others being armed with lathi, Ballam, Tangi, Nepala etc. came over there and started altercations with

Rejjak and Ayub and threatened them with dire consequences. During such altercation, all these accused persons along with Rejjak and Ayub came

near to the village mosque and at that place those accused persons started to beat Rejjak and Ayub with fists and blows. At that time, Motiar

Rahaman, Idrish Mollah and other village

people raised their protest against all these accused persons. It was alleged that at that time accused Abubakkar Mollah brought two bombs from his

house and handed over the same to Zakir and Zakir hurled those bombs towards Motiar Rahaman, out of which one bomb was exploded and as a

consequence thereof, Motiar Rahaman sustained severe bleeding injury near to his left knee and Idrish and some others also sustained some injuries.

The other bomb, which was hurled by Zakir, had not exploded.

It was further alleged that after the incident the village people surrounded those miscreants and ultimately, they caught accused Zakir and Ishahaque

and assaulted them and confined them within the village but the other miscreants managed to flee away. It was further alleged that previously the

accused persons were arrested by police and on their suspicion Motiar Rahaman and other villagers had caused them to be arrested, accused Zakir,

Ishahaque and others attacked Motiar with bombs and sharp weapons intending to kill him.

Thereafter, Atiar Rahaman, the brother of Motiar lodged a written complaint at Shyampur Police Station and on the basis of the said complaint, a

criminal case, being Shyampur P.S. Case no. 66 dated 11th July, 1992 was started against the accused persons under Sections

147/148/149/325/326/307 of the Indian Penal Code and under Section 9(b) of the Indian Explosives Act. Investigation was started and on completion

of investigation, the Investigating Officer submitted charge sheet against the accused namely, Ishahaque, Abubakkar, Keyamat, Rabial, Asmat, Sk.

Khatib, Asgar, Taheran Bibi, Ayesha Khatoon and Zakir Mallick under Sections 147/148/149/325/326/307 of the Indian Penal Code and under Section

9(b) of the Indian Explosives Act, wherein Sk. Asmat, Sk. Rabial and Taheran Bibi were shown as absconders. However, charges were framed

under Sections 326/149/148 of the Indian Penal Code against the accused namely, Sk. Ishahaque, Taheran Bibi, Sk. Keyamat, Ayesha Begum @

Ayesha Khatoon and Abubakkar Mollah, who pleaded not guilty.

Mr. Prabir Kumar Mitra, learned advocate for the appellants in CRA 566 of 2006 submitted that the jealousy of the prosecution story is as per the

First Information Report that while Ayub Molla and Rejjak Mallik went to cultivate the land of the mother of Abubakkar, who leased the land to them,

the appellants and others went to the spot with different weapons and a quarrel took place. Abubakkar ran to his house and returned with two bombs,

which were given to Zakir, who hurled the bomb at Motiar. If the bomb exploded on the knee of Motiar, there would have been some burn injuries on

the leg of both the witnesses, being P.W.2 and P.W.3, but there was no parch on the body of either of them and injury by explosives without burning is

unheard and thus the judgement of conviction is liable to be set aside. It was also alleged in the First Information Report that Ishahaque and Zakir

were beaten up and detained in the village. He further submitted that while scanning the evidence it is found that Atiar Rahaman, P.W.1 had failed to

substantiate the prosecution case with divergent evidence in chief and cross-examination, which could not create any confidence about his

truthfulness.

He further submitted that from the facts and circumstances and the evidence adduced by the witnesses it appears that the appellants’ participation

in committing offence with the help of common object has not been established even remotely. In support of his submission, reliance has been placed

on the decision of the Hon’ble Supreme Court in the case of Amzad Ali @ Amzad Kha & Ors. â€"vs- State of Assam reported in 2003 SCC

(Cri) 1338 and Pandurang Chandrakat Mhatre & Ors. â€"vs-State of Maharashtra reported in (2010) 1 SCC (Cri) 413. He also submitted that the

instant case suffered from inordinate delay in sending the First Information Report before the learned Magistrate, which is against the provision of

Section 157 of the Code of Criminal Procedure. In support of his submission, he has relied on a decision of the Supreme Court in the case of

Sudarshan & Anr. â€"vs- State of Maharashtra reported in (2014) 12 SCC 312, particularly paragraphs 15, 16 and 21 thereof. Thus, Mr. Mitra prayed

for acquittal of the appellants.

Mr. Usof Ali Dewan, learned advocate for the appellants in CRA 593 of 2006 supporting the contention of Mr. Mitra submitted that the alleged

incident took place on the day at about 10.30/11 a.m. in front of village Mosque surrounded by the houses of the villagers, but none of the independent

witnesses was examined in the instant case. There were so many contradictions transpired from the evidence of P.W.1, P.W.2 and P.W.3. According

to P.W.1, P.W.2 and P.W.3, Zakir, who hurled bombs, also sustained injury, he was admitted to hospital and subsequently, Zakir expired. But in cross-

examination P.W.1 admitted that at the time of incident he was at his residence. Therefore, claiming of eyewitness of P.W.1 is baseless. According to

the evidence of P.W.1, P.W.2 and P.W.3, P.W.2 and P.W.3 sustained bomb blast injury, but the evidence of doctor is contradicting to their evidence

in respect of nature of injury. In the injury reports concerning Motiar and Idris, it reveals that none of these persons disclosed any names of their

assailants before the doctor. He also submitted that the investigating Officer did not send the alleged unexploded bomb and remnants of the exploded

bomb for forensic opinion and he also did not seize the wearing apparels of injured Motiar and Idris.

He further submitted that P.W.1, P.W.2 and P.W.3 did not state before the Court on dock that the appellants namely, Ayesha Begum and Abubakkar

Mollah were present on the spot, so the question of participation in the alleged incident does not arise and therefore, the conviction and sentence

against the appellants is unwarranted. Hence, the prosecution failed to prove its case beyond reasonable doubt. In support of his submission, reliance

was placed on the decision of the Hon’ble Supreme Court in the case of Mehraj Singh â€"vs- State of U.P. reported in 1994(5) SCC 188 and

Thanedar Singh â€"vs- State of M.P. reported in 2002(1) SCC 487. Thus, learned advocate prayed that the appeal may be allowed by setting aside

the order of conviction and sentence imposed upon the appellants.

Learned advocate for the State submitted that it is not true that the appellants’ participation in committing offence with the help of common object

has not been established because from the First Information Report, it appears that the accused persons had an enmity or grudge against the victim as

they were responsible for getting the accused persons nabbed by the police in a case of dacoity previous to this incident. He further submitted that the

de facto complainant lodged the First Information Report on the same date of incident and therefore, there was no delay on the part of the de facto

complainant to lodge the First Information Report. He further submitted that the appellant failed to establish that the victim was injured while the

accused persons were exercising their right to private defence but none of the evidences shows that the accused were being attacked by the victim or

any other person. Rather the evidence shows that the accused persons in their cold mind brought bombs from their house and hurled the bombs

towards the victim. Therefore, the prosecution has been able to prove the case beyond all reasonable doubts. Thus, learned advocate for the State

prayed for dismissal of the appeal.

Heard learned advocates for the parties and perused the impugned judgement. The prosecution examined as many as five witnesses to prove its case.

P.W.1, Sk. Atiar Rahaman, de facto complainant of this case, stated in his evidence that on 11th July, 1992 at about 10/10.30 a.m. Rejjak Mallick was

running a power-tiller with the help of his driver on the land of the mother of Abubakkar Mollah in Harinarayanpur mouza. At that time Abubakkar,

Sk. Ishahaque and others raised protest and the mother of Abubakkar stated that she authorised Rejjak Mallick to cultivate the land under thika.

Thereafter, the accused persons started to assault Rejjak Mallick with fists and blows. Thereafter, Zakir brought two bombs from the house of

Abubakkar and hurled a bomb towards Motiar and as a result, Motiar sustained injury on his leg, Idrish Mollah sustained injury on his hand and Sattar

Mallick sustained injury on his leg. Zakir hurled two bombs, out of which one was exploded and the other did not explode. Thereafter, village people

rushed to the spot and the accused persons managed to flee away. After the said incident Motiar was first shifted to Kamalpur P.H.C. for his

treatment, Idrish, Sattar also visited Kamalpur P.H.C. and subsequently, Motiar was referred to Uluberia S.D. hospital for his medical treatment.

Thereafter, he lodged a written complaint at Shyampur Police Station. In cross-examination P.W.1 stated that Zakir expired. The accused Ishahaque

also sustained bleeding injury during the incident and he was also admitted to Kamalpur P.H.C. Subsequently, he was shifted to Uluberia S.D. hospital

and thereafter, he was again shifted to Howrah District hospital for his medical treatment.

P.W.2, Sk. Motiar Rahaman, brother of the de facto complainant deposed that on 11th July, 1992 the incident took place and on that day while Rejjak

Mallick came to the land along with his tractor, Amina raised protest and Ishahaque, Keyamat, Abubakkar, Isaran Bibi and Ayesa Bibi came there

with lathi, ballam etc. Thereafter, Abubakkar, Rabial and Zakir Mallick drove them with lathi etc. towards Masjid tala and Abubakkar brought a bomb

from his house and handed over the same to Zakir, who hurled the same and after its explosion, he sustained injury and lost his sense. Subsequently,

he regained his sense at Uluberia S.D. hospital and thereafter, he was shifted to Howrah District hospital.

P.W.3, Idrish Mollah stated in his evidence that on 11th July, 1992 at about 10/10.30 a.m. there was a dispute in connection with the land of the

mother of Abubakkar. On hearing the hue and cry he along with other village people rushed to the spot and found the accused persons being armed

with lathi, tangi, ballam etc. When they reached to the spot, the accused persons chased them. At that time Zakir brought two bombs from the house

of Abubakkar and hurled the same towards Motiar. One of those bombs struck on the knee of Motiar and other did not explode. He also sustained

splinter injury on his right hand. He lost his sense and regained his sense at Uluberia S.D. hospital. Subsequently, he was examined by the

Investigating Officer.

P.W.4, Dr. T.K. Bhattacharya, Medical Officer stated that on 11th July, 1992 he examined one Motiar Rahaman and found multiple injuries with

fracture and directed the patient to be shifted to Uluberia S.D. hospital for his better treatment. He further stated that on the same day he examined

one Idrish Mollah and found the injuries on the body of both the patients were fresh and grievous. The injury report was marked as Ext.3.

P.W.5, Sushil Kumar Bera, Sub-Inspector of Shyampur Police Station, who was the Investigating Officer of this case, stated that on the basis of the

written complaint lodged by Atiar Rahaman, Shyampur P.S. Case no. 66 dated 11th July, 1992 under Sections 147/148/149/325/326/307 of the Indian

Penal Code and under Section 9(b) of the Indian Explosives Act was started. During investigation he visited the place of occurrence and one

unexploded bomb and remnant of an exploded bomb were seized and collected injury report of the accused. He further stated that after releasing from

hospital, he produced Ishahaque and Zakir before the Court and arrested the accused Keyamat Ali on 17th July, 1992, Ayesha Khatoon on 1st

August, 1992 and Sk. Mosiar on 21st August, 1992. After investigation he submitted charge sheet under the aforesaid sections against the accused Sk.

Ishahaque, Zakir Mallick, Sk. Katib, Ayesa Khatoon, Taheran Bibi, Sk. Keyamat Ali, Sk. Asmat, Sk. Rabial, Sk. Asgar and Abubakkar Mollah. Since

he could not apprehend accused Sk. Asmat, Sk. Rabial, Sk. Asgar and Taheran Bibi, he submitted charge sheet showing those accused persons as

absconders.

On perusal of the evidence on record, I find that no document was shown by the appellants that the land belonged to the appellant Abubakkar’s

mother, who was not examined by the prosecution and as such there is no scope of private defence. It was submitted on behalf of the appellants that

there was a delay in forwarding the First Information Report by seven days, which is ante timed, but this submission is not accepted because delay in

forwarding the FIR by seven days cannot be termed as fatal in this case, as the ocular evidences regarding throwing of bombs and admission of the

victim to hospital by itself does not lead to defoliation of the prosecution case. Therefore, the decision cited by the learned advocate for the appellants

namely Sudarshan & Anr. â€"vs- State of Maharashtra(supra) regarding delay in sending First Information Report is not applicable in this case.

On examining the evidence on record of P.W.2, Sk. Motiar Rahaman, the victim and the most vital witness in the instant case, I find that P.W.2 stated

that Ishahaque, Keyamat, Abubakar, Isaran Bibi and Ayesha Bibi drove them from the field when Rejjak Mallick was plying his tractor towards

Masjidtala and Abubakkar brought a bomb from his house and handed over the same to Zakir, who hurled the same and after its explosion, he

sustained injury and lost his sense. P.W.1, Sk. Atiar Rahaman was the de facto complainant and the brother of the victim in the instant case. He has

corroborated the evidence of the victim, P.W.2 and stated that the bomb exploded on Motiar’s left knee. Similarly, P.W.3, Idrish Mollah while

corroborating the evidence of P.W.1 and P.W.2 stated that on 11th July, 1992 at about 10/10.30 a.m. on hearing the hue and cry he along with other

village people reached the place of occurrence and the accused persons chased them and a bomb thrown by Zakir brought from the house of

Abubakkar struck the knee of the victim causing grievous hurt to Sk. Motiar. P.W.4, Dr. T.K. Bhattacharyya on examination of the victim found-

1) Lacerated injury antedating from left thigh to below knee with suspected fracture on femur.

2) Multiple injury with fractured left wrist.

The injuries, which he found on the patient, were possible, if a bomb exploded on his left knee region. P.W.5, the Investigating Officer not only

collected the injury report of the victim but also the accused Ishahaque and Zakir who were also seriously injured and after they were released from

hospital, the accused Zakir and Ishahaque were produced before the Court. The analysis of the aforesaid evidence that the bomb thrown by Zakir and

brought by Abubakkar from his house corroborates the ocular version with the medical version but on the same breath improbabilities the prosecution

version that the other appellants had assaulted the victim in his left thigh and knee with bomb causing grievous hurt to the victim Sk. Motiar.

Although, I am of the view that the assault of P.W.2 by the appellant no.2 in CRA 593 of 2006 endangering his life was supported by medical

evidence, the ocular version of the victim himself and the evidence of P.W.5, the Investigating Officer that the appellants Sk. Ishahque and Zakir who

expired before the trial was over, were seriously injured, does not find any corroboration that the other appellants namely, Ishahaque, Keyamat, Isaran

Bibi and Ayesha Bibi played any role in throwing the bomb and injuring the victim P.W.2.

Hence, relying on the judgements in the case of Amzad Ali @ Amzad Khan & Ors. â€"vs- State of Assam (supra) and Mehraj Singh â€"vs- State of

U.P. (supra) cited by the learned counsel, I am inclined to extend the benefit of doubt to the appellant nos. 1, 2 and 3 in CRA 566 of 2006 and

appellant no.1 in CRA 593 of 2006. The appellants, Sk. Ishahaque, Teharan Bibi, Sk. Keyamat and Ayesha Bibi are acquitted of the charges levelled

against them and they shall be discharged from their bail bonds. But on the face of the cogent and consistent evidence of the eye witnesses that Zakir

threw the bomb brought from the house of Abubakkar which caused grievous hurt to the victim and the injury of the victim was corroborated by the

medical evidence, I am of the opinion that the prosecution has been able to prove its case beyond reasonable doubt against the appellant Abubakkar

and conviction of the appellant no.2, Abubakkar in CRA 593 of 2006 is upheld.

Coming to the issue of sentence of Abubakkar, I find that the incident occurred on 11th July, 1992 and the appellant is in bail for a long time. The

learned counsel also submitted that the appellant is more than eighty years old. Under the facts and circumstances of this case, sentence imposed

upon the appellant is modified to the extent that the appellant is sentenced to suffer rigorous imprisonment for two years instead of four years for the

offence punishable under Section 326 read with Section 149 of the Indian Penal Code and also to pay fine of Rs. 1000/-; in default to suffer further

rigorous imprisonment for three months.

Period of detention suffered by the appellant Abubakkar during investigation, enquiry and trial shall be set off from the substantive sentence imposed

upon him in terms of section 428 of the Code of Criminal Procedure. Bail bond of the appellant Abubakkar is cancelled and he is directed to surrender

forthwith before the trial court to serve out the sentence in accordance with law. If he fails to do so, the trial court shall resort to appropriate measures

to execute the sentence in accordance with law. Accordingly, the appeal being CRA 566 of 2006 is allowed and the appeal being CRA 593 of 2006 is

partly allowed. Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance. Urgent Photostat Certified

copy of this order, if applied for, be supplied expeditiously after complying with all necessary legal formalities.