Calcutta High Court (Appellete Side)
Salim Khan @ Mona vs State Of West Bengal on 6 February, 2023
Sl. No. 50
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Ajay Kumar Gupta
C.R.A. 163 of 2018
with
CRAN 2 of 2021
Salim Khan @ Mona
-Vs-
State of West Bengal
For the Appellant : Mr. Kallol Mondal, Adv.
Mr. Krishan Ray, Adv.
Mr. Souvik Dan, Adv.
Mr. Anamitra Banerjee, Adv.
Mr. Ayan Mondal, Adv.
For the State : Mr. Madhusudan Sur, ld. A.P.P.
Mr. Manoranjan Mahata, Adv.
Heard on : 06.02.2023
Judgment on : 06.02.2023
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. 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. 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 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. 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.
I agree.
(Ajay Kumar Gupta, J.) (Joymalya Bagchi, J.)
sdas/PA
