Alok Kumar Basu , J.
1. Sanjay Sonkar @ Drum with Mahabir Singh faced charges under Section 302/34 of the IPC and also under Sections 3 and 5 of the Explosive Substances Act in connection with Sessions Trial No. 1 of 2004 arising out of Sessions Case No. 24 of 2002 before the learned Additional Sessions Judge, Fast Track Court, Bichar Bhaban, Kolkata and after conclusion of trial, both Sanjay Sonkar and Mahabir Singh were convicted under Section 302/34 of the IPC as well as under Sections 3 and 5 of the Explosive Substances Act and they were sentenced to suffer rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- each in default to suffer rigorous imprisonment for two years each under Section 302/34 of the IPC and they were also sentenced to suffer rigorous imprisonment for three years each and to pay a fine of Rs. 1000/- each in default to suffer rigorous imprisonment for six months each for the offences under Sections 3 and 5 of the Explosive Substances Act.
2. Sanjay Sonkar preferred Criminal Appeal No. 5 of 2005 challenging his order of conviction and sentence and at the time of hearing of the appeal preferred by Sanjay Sonkar, it has been brought to our notice that Mahabir Singh another convict of the self same trial has also preferred Criminal Appeal No. 88 of 2006 challenging his conviction and sentences and we have taken that appeal of Mahabir Singh also for disposal along with the appeal preferred by Sanjay Sonkar since both the appeals arose out of the same judgment.
3. Sri Pratul Chandra Sarkar, the then S. I. Posta P. S. receiving an information on 14-10-2000 about serious injury of an unkown person due to bomb explosion in front of 'Ram Bhandar' at 276, Rabindra Sarani near Ganesh Talkies at 21.52 hours recorded G. D. Entry No. 1399 and left with his force towards the place of occurrence. Pratul Chandra Sarkar on his arrival in front of 'Ram Bhandar' met O. C. Jorabaga P. S. and also A. S. I. Bidyut Kr. Gupta and came to learn that an unkown person was found lying in front of 'Ram Bhandar' with serious bleeding injuries on his person due to explosion of a bomb and O. C. Jorabagan P. S. already removed the said injured person to the hospital through constable Suresh Prasad Singh and Nirmal Singh of Jorabagan P. S.
4. Pratul Chandra Sarkar on his return to Posta P. S. by recording G. D. Entry No. 1409 started a case against the unknown miscreants and thereafter he was given charge of investigation of the said case by O. C. Posta P. S.
5. S.I. Pratul Chandra Sarkar on 15th October, 2000 recorded the statement of constable Suresh Prasad Singh, constable Bhubaneshwar Singh, constable Ashok Kr. Natta and constable Nirmal Singh of Jorabagan P. S. and came to learn that riding on a motorcycle Sanjay Sonkar and Mahabir Singh came near 'Ram Bhandar' and Mahabir Singh threw a bomb at 'Ram Bhandar' which exploded and as a result of that explosion Sew Sankar Misra was seriously injured and later he succumbed to his injuries in the hospital.
5.1 P.W. 25 Syed Akbar Ali subsequently took over investigation of the case and on perusal of evidence collected by Pratul Chandra Sarkar and himself, he submitted charge sheet against both Sanjay Sonkar @ Drum and Mahabir Singh under Section 302/34 of the IPC and also under Sections 3 and 5 of the Explosive Substances Act.
6. The learned Trial Judge, after framing charges against both the appellants, called upon the prosecution to examine its witnesses and the prosecution side examined as many as 25 witnesses of whom P.W. 1 Bidyut Kr. Gupta A. S. I. of Police, P.W. 2 Suresh Prasad Singh constable of Jorabagari P. S., P.W. 3 Bhubaneshwar Singh Constable of Jorabagan P. S., P.W. 7 Ashok Kr. Natta constable of Jorabagan P. S., P.W. 14 Nirmal Singh constable of Jorabagan P. S., P.W. 17 Ashim Kr. Ghosh O.C. Jorbagan P. S., P.W. 24 Pratul Chandra Sarkar S. I. Posta P. S. and P.W. 25 Syed Akbar Ali S. I. Posta P. S. are important witnesses for consideration of the charges framed against the appellants.
7. Prosecution, during trial, also produced before the learned Additional Sessions Judge the relevant G. D. entries recorded by P.W. 24 Pratul Chandra Sarkar, post mortem report of deceased Sew Sankar Misra, medical papers of the deceased, seizure lists and also FSL report.
8. After considering prosecution evidence as available from record both oral and documentary and after considering submissions of both prosecution and the accused persons, the learned Additional Sessions Judge observed that on 14-10-2000 at 276, Rabindra Sarani in front of Ram Bhandar', appellant Sanjay Sonkar @ Drum came on a motorcycle and appellant Mahabir Singh was on the back side of the said motorcycle and at about 9.25/9.30 p.m. Mahabir Singh hurled a bomb aiming at 'Ram Bhandar' which exploded on the footpath and due to such explosion of the bomb Sew Sankar Prasad who was passing along the footpath became seriously injured and he subsequently died at the hospital.
9. The learned Additional Sessions Judge mainly relying on the evidence of P.W. 2 Suresh Prasad Singh, P.W. 3 Bhubaneshwar Singh, P.W. 7 Ashok Kr. Natta and P.W. 14 Nirmal Singh was of the firm conclusion that all these witnesses had seen both the appellants on the motorcycle at the relevant date and time and those witnesses had also seen Mahabir Singh to throw bomb aiming at 'Ram Bhandar'.
10. The learned Additional Sessions Judge from the post mortem report, seizure lists and FSL report came to the conclusion that Sew Sankar Misra died on receipt of injuries due to bomb explosion and he was lound with serious bleeding injuries on the footpath in front of 'Ram Bhandar' by P.W. 17 O. C. Jorabagan P. S. and when P.W. 2. P.W. 3, P.W. 7 and P.W. 14 identified both the appellants and found Mahabir Singh to throw bomb, prosecution successfully proved that both the appellants were guilty under Section 302/34 of the IPC for the homicidal death of Sew Sankar Misra and also for the offences under Sections 3 and 5 of the Explosive Substances Act since Sew Sankar Misra died as result of bomb explosion.
11. Appearing for the appellants, the learned advocate Mr. Basu after analyzing the statement of principal prosecution witnesses submits before us that on the face of record it would appear that the entire prosecution case against both the appellants appears to be manufactured and concocted. Mr. Basu submits that from the G. D. entry recorded by P.W. 24 Pratul Chandra Sarkar number being 1409 it is found that after meeting O. C. Jorabagan P. S. he recorded the said G. D. entry and that G. D. entry was treated as first information report to institute the case and, surprisingly enough, it was specifically mentioned in the said G. D. entry that identity of the miscreants could not be fixed as yet. Mr. Basu submits that P.W. 2 Suresh Prasad Singh, P.W. 3 Bhubaneshwar Singh, P.W. 7 Ashok Kr. Natta and P.W. 14 Nirmal Singh, all constables of Jorbagan P. S. were at the place of occurrence along with O. C., Jorabagan P. S. and in all probability, O. C. Jorabagan P. S. was the first man having the best opportunity to know the identity of the miscreants from those constables, but, on 14th October, 2000 none of these constables disclosed the identity of the appellants and for that reason even after meeting O. C. Jorbagan P. S. and even after knowing the detail of the occurrence, S. I. Pratul Chandra Sarkar had no opportunity to come to the conclusion that the appellants were in any way involved with the alleged offence.
12. Mr. Basu submits that if we carefully consider the statement P.W. 2, P.W. 3, P.W. 7 and P.W. 14 along with the statement of P.W. 1 Bidyut Kr. Gupta A. S. I. who was also present near the place of occurrence, we would find that the statements of the alleged eyewitnesses disclosing the identity of the appellants suffer from serious contradictions with each other and in this context, it is very important to mention that while Nirmal Singh P.W. 14 was with Ashok Kr. Natta P.W. 7, Nirmal Singh did not utter a single word disclosing the identity of the appellants.
13. Mr. Basu submits that it is admitted position of law that to prove prosecution charges satisfactorily prosecution must prove the time of occurrence as indicated in the first information report and in this particular case according to prosecution case as projected through FIR and also through the statement of alleged eyewitnesses P.W. 2, P.W. 3, P.W. 7 and P.W. 14 the occurrence took place at about 9.25/9.30 p.m., but, if we look at the statement of P.W. 17 O. C., Jorabagan P. S., we would find that in his examination in chief, this witness has stated clearly that hearing a sound of bomb explosion between 7.15/7.30 p.m. he reached the place of occurrence and he found an unknown person lying there with bleeding injuries as a result of explosion of bomb and again, P.W. 10 Sukhbir Singh Chawla owner of 'Ram Bhandar' and P.W. 20 Bijoy Gupta owner of a nearby pan shop and who was also injured in the bomb explosion have deposed that the bomb explosion took place at about 6 p.m. and Mr. Basu contends that if we accept the testimony of prosecution witness 17 O. C. Jorabagan P.S. who was the first man to reach the place of occurrence and whom S. I. Pratul Chandra Sarkar the FIR maker met on 14th October, 2000, we are bound to hold that no explosion resulting the death of Sew Sankar Misra took place at 9.25/9.30 p.m. and when we reach this conclusion, we are bound to hold that statement of P.W. 2, P.W. 3, P.W. 7 and P.W. 14 implicating the appellants behind the explosion must be false altogether.
14. Mr. Basu submits that according to P.W. 2 when he brought the injured person at the hospital he disclosed the name of the appellants before the doctor P.W. 16, but, from the statement of P.W. 16, we do not get any such thing and this would also show that P.W. 2 had no occasion to see the appellants near the vicinity of the place of occurrence and his entire statement was preplanned and manufactured for the purpose of implicating the appellants falsely in this case.
15. Thus, Mr. Basu through his oral submission and also through his written note of argument concludes that prosecution witnesses P.W. 2, P.W. 3, P.W. 7 and P.W. 14 cannot be relied on at all and, that apart, the occurrence never took place at 9.25/9.30 p.m. as alleged by the prosecution and naturally, the learned Additional Sessions Judge was not justified in recording the order of conviction and sentence against both the appellants relying on such weak prosecution evidence.
16. Mr. Chatterjee appearing with Ms. Minoti Gomes for the State strongly supported the order of conviction and sentence of both the appellants contending inter alia that in this particular case with the help of a number of eyewitnesses prosecution has satisfactorily proved involvement of both the appellants behind the gruesome murder of an innocent passers-by for no fault of his own.
17. Mr. Chatterjee contends that it is undisputed fact that the deceased was found with serious injuries in front of 'Ram Bhandar' at 2766, Rabindra Sarani first by O. C. Jorabagan P. S. who immediately shifted the injured person with the help of constable of his P. S. to the nearby hospital for treatment and unfortunately the victim expired at the hospital. Mr. Chatterjee contends that the post mortem report as well as Dr. Nirmal Chandra Tripathi P.W. 16 proved that victim died as a result of receiving injuries due to bomb explosion.
18. Mr. Chatterjee contends that P.W. 2, P.W. 3, P.W. 7 and P.W. 14 were present near the place of occurrence and at about 9.25/9.30 p.m. all of them heard the sound of bomb explosion and since thereafter they found both the appellants on the motorcycle and P.W. 2 and P.W. 3 in particular saw Mahabir Singh to throw bomb and from the presence of Sanjay Sonkar and from the action of Mahabir Singh it was proved beyond all reasonable doubt that both of them sharing a common intention hurled the bomb and as a result of the bomb explosion Sew Sankar Misra lost his valuable life.
19. Mr. Chatterjee, therefore, submits that when there was direct evidence implicating both the appellants and when medical evidence and evidence of other local witnesses supported the bomb explosion, the learned Trial Judge, in proper appreciation of evidence, recorded the order of the conviction and sentence against both the appellants and there appears no ground whatsoever to interfere with such conviction and sentence order.
20. We have heard and considered submissions of both Mr. Basu as well as Mr. Chatterjee and we have also carefully examined the prosecution evidence as available with the record. On hearing both the learned advocates and after careful consideration of the prosecution evidence we find that undisputedly Sew Sankar Misra the unfortunate passer-by was victim of a bomb explosion that has taken place on 14th October, 2000 on the footpath in front of 'Ram Bhandar' at 276, Rabindra Sarani and it is also not in dispute that said Sew Sankar Misra ultimately died on receipt of injuries due to the bomb explosion.
21. We find from the trend of prosecution evidence that according to prosecution allegation the bomb explosion took place at about 9.25/9.30 p.m. and the present appellants, to be more specific. Mahabir Singh was responsible for the bomb explosion and, in lad. he hurled the bomb aiming at 'Ram Brumdar' which exploded on the footpath and thus. Sew Sankar Misra received injuries and Mahabir Singh came on a motor cycle along with another appellant Sanjay Sonkar.
22. We find from the prosecution evidence that P.W. 2, P.W. 3 and P.W. 7 were the persons who on the spot saw both the appellants and those witnesses also saw Mahabir Singh to throw the bomb from the motorcycle with Sanjay Sonkar.
23. Now, having regard to the prosecution charges and having regard to the prosecution evidence the only question for our consideration would be whether the learned Additional Sessions Judge was legally and factually justified in convicting both the appellants under Section 302/34 of the IPC and also under Sections 3 and 5 of the Explosive Substances Act for the death of Sew Sankar Misra.
24. We find from the judgment impugned in these appeals that the learned Additional Sessions Judge mainly relied on the statement of P.W. 2, P.W. 3 and P.W. 7 to reach the conclusion that both the appellants were responsible for the bomb explosion and also the resultant homicidal death of Sew Sankar Misra.
25. We find from the G. D. entry recorded by P.W. 24 Pratul Chandra Sarkar that on receipt of a message he arrived at the place of occurrence after 9.30 p.m. and going there, he met P.W. 17 who was O. C. Jorabagan P. S. and from O. C. Jorabagan P. S. P.W. 24 came to learn that an unkown person was found lying on receipt of bomb injuries and that man was already shifted to the hospital with the help of P.W. 2 and P.W. 14. It is important to note that P.W. 2, P.W. 3, P.W. 7 and P.W. 14 were all constables of Jorabagan P. S. and according to them and also according to P.W. 17 himself all those constables of Jorabagan P. S. sent P.W. 2 and P.W. 14 with the injured person to the hospital. It is very significant to note that O. C. Jorabagan P. S. P.W. 17 on 14-10-2000 did not disclose to P.W. 24 that he had come to learn from his constables namely P.W. 2. P.W. 3, P.W. 7 and P.W. 14 that appellants were responsible for explosion of the bomb. I
26. It is significant to mention that P.W. 24 Mr. Pratul Chandra Sarkar while lodging the FIR on the basis of subsequent G. D. entry and after meeting O. C. Jorabagan P. S. P.W. 17 recorded that miscreant's identity could not be established as yet.
27. Again, we find from prosecution evidence that P.W. 2, P.W. 3, P.W.7 and P.W. 14 found the appellants on a motorcycle at the place of occurrence at 9.25/9.30 p.m. and noticed one of the appellants Mahabir Singh to throw the bomb and according to these witnesses Sew Sankar Misra received the injury at about 9.25/9.30 p.m. out of the bomb explosion.
28. Now, when we look at the evidence of P.W. 17 O. C. Jorabagan P. S. we get that he came at the place of occurrence after 7.30 p.m. on hearing the sound of a bomb explosion and at that time he noticed the unknown person lying on the footpath with bleeding injuries and thereafter he was shifted to hospital by P.W.2 and P.W. 14 and if we accept the statement of P.W. 17 who was none else than the officer-in-charge of a P. S., we are bound to hold that P.W. 2, P.W. 3 and P.W. 7 did not depose truly at all, rather, they were examined to give false statement implicating the appellants.
29. Again, when we examine the statement of P.W. 10 Sukhbir Singh Chawla owner of 'Ram Bhandar' along with P.W. 20 Bidyut Gupta owner of a nearby pan shop who was also injured in the bomb explosion we find that the bomb was exploded at about 6 p.m. and if we consider the statement of P.W. 17 along with P.W. 10 and P.W. 20, we have no option but to hold that Sew Saankar Misra received bomb injury much before 9.25/9.30 p.m. and this also demolishes the entire evidence of P.W.2, P.W.3 and P.W.7.
30. Another important feature of the prosecution case is that while P.W. 7 and P.W. 14 were together at the same place, P.W. 14 did not recognize the appellants who were already known to them being the alleged criminals of the locality and in this context we can also mention that according to P.W. 2 when he had taken the injured to the hospital, he disclosed the name of the appellants before the attending doctor, but, the attending doctor P.W. 16 did not support this statement of P.W.2.
31. Thus, after considering submissions of Mr. Basu and Mr. Chatterjee along with the written note of argument of Mr. Basu and after careful consideration of the statement of P.W. 2, P.W. 3, P.W. 7, P.W. 10, P.W. 14, P.W. 17, P.W. 20 and P.W. 24 we find that the bomb explosion took place much before 9.25/9.30 p.m. and Sew Sankar Misra received injuries due to bomb explosion much before 9.25/9.30 p.m. and P.W. 2, P.W. 3 and P.W. 7 had no occasion to see the appellants throwing bombs at 'Rain Bhandar' and even if these witnesses had seen the appellants, in all probability, they could have disclosed the same to P.W. 17 who was the first superior officer to arrive at the P.O. and when that was not done and when P.W. 24 the FIR maker even after meeting P.W. 17 did not collect the name of the appellants and did not reflect the same in his FIR, we are bound to hold that involvement of both the appellants behind the explosion resulting unfortunate death of Sew Sankar Misra was not proved beyond reasonable doubt.
32. Thus, after considering the entire evidence, we are of the view that the learned Additional Sessions Judge was not justified in placing her reliance on the testimony of P.W. 2, P.W. 3 and P. 7 in view of the statements of P.W. 10, P.W. 17, P.W. 20 and P.W. 24 and that being the factual position, we are inclined to hold that the learned Judge erred in fact and law in convicting the appellants both under Section 302/34 of the IPC as well as under Sections 3 and 5 of the Explosive Substances Act.
33. In view of our above discussion, we find merit in both the appeals and we allow the same accordingly.
34. Criminal Appeal No. 5 of 2005 preferred by Sanjay Sonkar @ Drum and Criminal Appeal No. 98 of 2006 preferred by Mahabir Singh are accordingly allowed and the order of conviction and sentence recorded against them by the learned Trial Court are hereby set aside. Both the appellants are held not guilty of the charges framed against them and they stand acquitted of all those charges.
35. We find from record that both the appellants are in detention and in view of our judgment we direct the Superintendent of the Correctional Home where the appellants are detained to release the appellants forthwith from this case if they are not wanted in connection with any other case.
36. Office is directed to send a copy of this judgment to the Superintendent of the Correctional Home where the appellants are detained immediately.
37. Office is also directed to send LCR along with copy of this judgment forthwith for information and necessary action of the Trial Court.
38. Urgent xerox certified copy of this judgment, if applied for, be supplied expeditiously on making proper application after complying with all legal formalities.
Partha Sakha Datta, J.
39. I agree.