JUDGMENT

Swatanter Kumar, J.-The present appeal is directed against the judgment of the Calcutta High Court dated 21st November, 2006 in exercise of its criminal appellate jurisdiction vide which the High Court affirmed the judgment of conviction and the order of sentence passed by the Trial Court.

2. Before dealing with the rival contentions raised by the learned counsel appearing for the parties, it is necessary for the Court to notice the case of the prosecution in brief. On 19th December, 1984, amongst other villagers of village Lauria, Yamin PW8 and Mohammed Sadak Ali, PW1 hired a pump set of one Humayun Kabir, who was examined as PW7, for taking water from the pond known as Baro Lauria Pukur for irrigating their respective lands. PW8, Yamin and others drew water from the said pond. In the afternoon, when Mohammed Sadak Ali, PW1, and his brother, the deceased Samim Ali, went on the bank of the said tank for drawing water through the said pump, accused Yanab arrived there. He had an altercation with Mohammed Sadak Ali and Samim Ali which related to drawing of water from the tank. Though, PW1 had assured Yanab that they would stop taking water from the Pukur within a short time, yet Yanab forcibly switched off the pump machine. This further aggravated their altercation and accused started abusing them. Thereafter, accused Yanab suddenly went running to his house and came back within a few minutes along with the other accused named Najrul. Yanab then threw a bomb aiming at Samim Ali which hit him on his chest and exploded. As a result thereof, Samim fell onto the ground, his clothes got burnt and he died instantaneously. It is also the case of the prosecution that Najrul had a cloth bag in his hand and Yanab took out the bomb from that cloth bag and threw the same towards Samim. Immediately after the incident, both the accused persons fled away. With the help of the villagers, Mohammed Sadak Ali took Samim to his house which was stated to be at a short distance from the bank of the tank. The information with regard to the incident was given to the Rampurhat Police Station through telephone. SI R.P. Biswas, PW14, along with SI Samit Chatterjee, PW15, arrived at village Lauria around 10.00 p.m. on 19th December, 1984. The telephonic information, on the basis of which the G.D. Entry No.708, Ex.7, was lodged was made by PW6 from a phone booth. After these officers arrived, PW1, Sadak Ali submitted a written complaint, Ex.1, addressed to the Officer Incharge of Rampurhat Police Station. SI, R.P.Biswas, then made an endorsement, Ex.1/1 and sent the same through Constable Sunil Dutta to Rampurhat Police Station for starting a case under Sections 148/149/324/326/302 of the Indian Penal Code (for short ‘IPC’) and 9(b)(ii) of the Indian Explosives Act. Ex.1 was received at the police station by SI B.Roy. Upon this, a formal FIR, Ex.1/3, was registered and the investigation was started by PW14. He prepared the Inquest Report, Ex.2, over the dead body of the deceased on identification of the same by his brother, PW2. The sketch map of the place of occurrence, Ex.8, was prepared. The pump set was seized vide seizure list Ex.5 and a Zimma Nama Ex.6 was prepared. PW14 also collected the post mortem report of the deceased from the Sub-Divisional Hospital, Rampurhat on 21st January, 1985. Because of transfer of PW14, the investigation of the case was taken up by SI, N.R. Biswas. Later on the investigation was also completed by PW15, S. Chatterjee, who had filed the charge sheet. The accused persons faced the trial for the above-mentioned offences before the Court of Sessions, which by a detailed judgment dated 18th September, 1992, held them guilty of the offences and punished the accused Yanab as follows:

“I, therefore, hold and find accused Yanob not guilty to the charge under section 324 of the I.P.C. and he is acquitted of that charge. As regards the charge under section 9(b)(ii) of the I.E. Act there is no evidence that accused Nazrul h