IMPORTANT POINT
Where accused manufactured bombs at his house and as a result of explosion of a bomb two persons of his neighbours died and some others injured but the prosecution had not brought out any circumstances by which the Court could remotely attribute knowledge to the accused that by manufacturing and possessing of bomb death of any person was likely consequence, case did not fall within ambit of Section 299 IPC so as to warrant conviction under Sections 304 and 308.

Headnote:Indian Penal Code, 1860-Sections 299, 304 and 308-Culpable homicide-Manufacturing bomb in home of accused-Bomb allegedly manufactured to be used against a rival community-Accidental explosion of bomb in house resulting in death of three persons and injuring 19 others in neighbourhood-No circumstances brought out by which Court could remotely attribute knowledge to accused that by manufacturing and possessing bombs death of any person was a likely consequence-Case does not come within ambit of Section 299-Conviction under Section 304 and 308 set aside.
       Held : The act proved to have been committed by the appellant alongwith Babu Khan in this case is manufacture of explosive substances like bombs. Hence what is to be established is, the above act must have been done with the knowledge that such act by itself was likely to cause death. If some other act had intervened which the offender did not do consciously which triggered the explosions that could not be counted as the act for that offender. No evidence had been let in by the prosecution to show that mere manufacture of such bombs is likely to cause death of any person, nor any evidence for showing that appellant had the knowledge that by manufacturing bombs death would possibly be caused to any human being without any other act being done. (Para 11)
       The prosecution has not brought out any circumstance by which the Court could remotely attribute knowledge to the appellant that by manufacturing and possessing bombs death of any person was a likely consequence. By manufacturing a bomb, alone no one can normally think that it would explode without anything more done. Here something more would have happened which caused the explosion, what was that additional act is unknown to us. At any rate there is no material to show that the appellant had done that additional act. (Para 12)
       In view of the aforesaid legal position we find no scope to bring the proved facts within the ambit of Section 299 of the IPC. If so, the question of culpable homicide would stand at bay. We, therefore, find it legally difficult to confirm the conviction either for the offences under Section 304 or for Section 308 of the IPC. As a corollary we set aside the conviction and sentence passed on the appellant in regard to those two counts. (Para 13)

JUDGMENT

During the wee hours on 2.11.1989 a shuddering bomb explosion took place at J.J. colony in Shakurpur (Delhi) Three persons died in the explosion almost instantaneously and 19 others were injured, some of them very seriously. The impact of the explosion was such that four adjoining multi-storeyed houses collapsed. The investigating agency concluded that the explosion was the aftermath of stalking bombs in the house of the appellant which was done by himself in association with one of the victims (Babu Khan) and some others including the co-accused. They further found that there was a criminal conspiracy to manufacture explosive bombs to be used on an appropriate occasion.

2. The appellant Shamsher Khan was one of the four persons arraigned before a Designated Court constituted under Terrorists and Disruptive Activities (Prevention) Act 1987 ( TADA for short). They were charged for offences under Sections 304, 308 and 120-B of the Indian Penal Code besides Section 5 of the TADA and Section 4(b) of the Explosive Substances Act. Appellant alone was convicted of all the offences and the rest of the accused were acquitted by the trial Court. On the first count he was sentenced to rigorous imprisonment for 10 years for the offence under TADA and the Explosive Substances Act. He was sentenced to undergo rigorous imprisonment for 7 years. For Section 308 IPC he was sentenced to undergo rigorous imprisonment for 5 years. Apart from the aforesaid substantive sentences fine has also been imposed onthe various counts. This appeal has been filed by the appellant as of right under Section 19 of TADA.

3. According to the prosecution, appellant enlisted the other persons for the purpose of manufacturing bombs to arm themselves to make onslought on the members of another community. The background was that a procession was staged by an organisation called Bajrang Dal a few days earlier calling out slogans some of which were so inflammable that they instilled fear in the mind of the appellant that unless he and his companions arm themselves with lethal weapons they might be victims of an attack. The appellant first contacted PW. 2-Shahabudin for securing the services of Babu Khan who knew how to manufacture bombs. After acquiring the necessary equipment and materials Shahabudin s house was selected as the venue for manufacturing bombs. But the task could not be carried out at that house on account of the forceful resistance offered by Shahabudin s wife Hasina (PW.22) and thereupon the venue was shifted to the house of the appellant. Babu Khan manufactured bombs and stored them in that house. One of those bombs (or more than one) got exploded at about 3.00 a.m. on 2.11.1989 resulting in the catastrophe mentioned above.

4. PW.2 Shahabudin was originally included in the array of the accused. However, pardon was tendered to him and he was converted into an approver. His evidence in the Court is in full support of the prosecution case as narrated above. It is unnecessary to repeat the evidence given by PW.2 as we have stated the case in the foregoing paragraphs.

5. If the testimony of PW.2 is believable there can be little doubt that appellant had caused explosive bombs to be manufactured and stored them in his house. But PW.2 Shahabudin on the showing of the prosecution itself, is an accomplice and therefore we would seek corroborative materials to give assurance to us that the testimony is true, despite the inherent drawback of that witness.

6. We came across a number of items of evidence which are corroborative materials as for the testimony of PW.2. The foremost among them is the evidence of PW.22-Hasina herself. She said that Babu Khan and appellant brought some materials to her house and when she realised that they were about to manufacture bombs she did not permit that to be done in her house. Because of her forceful opposition Babu Khan and appellant had shifted their activities to the house of the appellant. The testimony of PW.22 was b

Click Here to Read the rest of this document