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Majeed Khan Mohammad Yaseen Khan and anr. Vs. Rex - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in1950CriLJ61
AppellantMajeed Khan Mohammad Yaseen Khan and anr.
RespondentRex
Excerpt:
.....said witness in spite of the various points which he pointed out as affecting his veracity. the learned judge pointed out that the explosive substance that had burst in the hujra of the mosque was so powerful and the ravage caused by it was so extensive and serious that the door of the hujra had been actually broken, torn off its hinges and flung outside. the words 'unlawfully' and 'maliciously' in the opening part of the section clearly indicate that the man charged must have knowledge of the existence of the article near him and that he must also have an intention to cause injury to life or property by means thereof. 300, it was held that possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close..........the basis of this conviction and that was this;it being thus established that the explosion took place inside the hujra, it follows that bundu and majid were inside it when it took place.7. this is to mean that the learned judge held the appellants guilty because he found them to be inside the room at the time of the explosion. the question is whether this is at all an adequate ground in law for such a conviction.8. section 4(b), explosive substances act, provides as follows :any person who unlawfully and maliciously makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in british india, or to enable any other person by means thereof to endanger life or cause serious injury to.....
Judgment:

Mustaq Ahmad, J.

1. On the facts found by the learned Sessions Judge is this case, and having regard to a for other circumstances which I shall notice, the conviction of the appellants Majid Khan and Bundu Khan was, in my opinion, almost impossible. They were convicted each under Section 4(b), Explosive Substances Act (vi [6] of 1908) and sentenced to five years' rigorous imprisonment by the learned Sessions Judge of Meerut, and they appeal against the same.

2. The case, arose in the following manner. On 13th June 1947, at 10-30 P.M., one Dwarka Prasad lodged a report at the police station Baghpat to the following effect:

In the mosque of mohalla Eangran, Bagbpat town there were three violent explosions. The reports were very loud and caused piano throughout the town. When I went to the scene I found the mosque smothered with smoke and the smell of gun powder prevailing all round. People were coming out of the mosque with articles. There were previous complaints of the collection of aroma in this mosque.

3. In his evidence in Court, Dwarka Prasad, informant, introduced a lot of additional facts which had not been mentioned in the above report. He then said that when after hearing the reports he had rushed to the mosque and gone into it, he found there were about 20 person outside the Hujra (room) whereas inside it there were four men, two of whom were lying on the ground and appeared to be injured. While the other two held a lantern each and were looking round the room and saying that everything should be collected quickly. He declared that these four men were the two appellants and two other persons, Umrao and Salim, father of Bundu Khan appellant.

4. The learned Sessions Judge pointed out that the only evidence in the case, so far as the identification of the appellants was concerned, was that of Dwarka Prasad. He disbelieved even this single witness on the ground that his evidence in Court had gone far beyond the simple version which he had given in his report at the police station and also on the ground that he had falsely implicated at least two of the four accused, namely, Umrao and Salim, who were acquitted by the learned Sessions Judge.

5. The position, therefore, was that the only witness against the appellants, namely, Dwnrka Prasad, was discredited by the learned Judge on grounds, which, in my opinion, were perfectly valid, and it is not possible for me to say that he should have believed the said witness in spite of the various points which he pointed out as affecting his veracity.

6. One might have expected that such a situation necessarily involved the acquittal of the appellants. The learned Judge notwithstanding this convioted them. There is, practically speak. ing, only a single sentence in his judgment which may be regarded as furnishing the basis of this conviction and that was this;

It being thus established that the explosion took place inside the hujra, it follows that Bundu and Majid were inside it when it took place.

7. This is to mean that the learned Judge held the appellants guilty because he found them to be inside the room at the time of the explosion. The question is whether this is at all an adequate ground in law for such a conviction.

8. Section 4(b), Explosive Substances Act, provides as follows :

Any person who unlawfully and maliciously makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in British India, or to enable any other person by means thereof to endanger life or cause serious injury to property in British India, shall whether any exploaion does or does not take place and whether any injury to person or property has been actaally caused or not, be punished with transportation for a term which may extend to twenty years, to which fine may be added or with imprisonment for a term which may extend to seven years, to which fine may be added.

9. The essential ingredient, therefore, of an offence under the above section is that the accused must be found to have in his possession or under his control some explosive substance with the intention of endangering life, etc. In the present case all that was found by the learned Sessions Judge was that the appellants were inside the hujra when the explosion had taken place. In the first place, this finding itself appears to my mind to be extremely doubtful in fact. The learned Judge pointed out that the explosive substance that had burst in the hujra of the mosque was so powerful and the ravage caused by it was so extensive and serious that the door of the hujra had been actually broken, torn off its hinges and flung outside. Besides, a number of holes had been cut in the roof of the hujra and the floor and all the walls had been blackened over a wide area, and also damaged at places, The injuries, on the other hand, inflicted on the appellants by the burns they had received were found by the doctor to be all of a 'superficial' nature. I cannot imagine that, while the explosion had been found to be so violent as to have caused such a serious damage to the hujra itself, it should have left only such minor burns on the bodies and clothes of the appellants, as noted by the doctor. This is consistent only with the hypothesis that the appellants were not inside the hujra at that time but were at some distance from it, thereby avoiding an emergency which might have proved to be simply catastrophic otherwise.

10. Assuming, however, that the appellants, as observed by the learned Sessions Judge, were inside the hujra when the explosion had taken place, the question of law arising is whether this circumstance alone furnished the necessary ingredient of an offence Under Section 4(b) of the Act. A man may be in close proximity to an objectionable substance, such as a bomb or other explosive article, and the same may even burst where he is in that position. It can hardly be said that from this fact alone it is proved that he had 'possession' of or 'control' over that article . within the meaning of the said section. The words 'unlawfully' and 'maliciously' in the opening part of the section clearly indicate that the man charged must have knowledge of the existence of the article near him and that he must also have an intention to cause injury to life or property by means thereof.

11. Sir Shadi Lai delivering the judgment of the Bench in Dula Singh v. Emperor A.I.R. (15) 1928 Lab. 272 : 29 Cr.L.J. 481, pointed out that:

Not only does the term 'possession' imply knowledge, but the expression 'malioiouaiy', as used in Section 4, cannot a intention, But neither knowledge nor intention the to the use to be made of an object, can be imputed to a person who is not conscious of its existence.

12. In Indar Datt v. Emperor A.I.R (18) 1931 Lah. 408 at p. 416 ; 32 Cr.L.J. 818, it was observed that mere presence of mensal stains on a roan's wearing apparel was not sufficient to fasten him with an offence under this section. Again, in Kuldip Ghand v. Emperor A.I.R. (21) 1934 Lah. 718 : 36 Cr.L.J. 300, it was held that

Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close proximity of the offending object. These are the important elements which go to make up an offence Under Section 4(b).

Lastly, in Amrita Lai Bazra v. Emperor, 43 Cal. 957 : A.I.R. (3) 1916 Cal. 188 : 16 Or. L, J. 497 Sir Ashutosh Mookerjee on a review of a large number of decisions of his own Court and also of this Court summarised the law in the following words:

It is sufficient to say that while it 13 not necessary to prove manual possession of the explosive substance by the accused, it must be proved that it was in his power or control; possession to be punishable must also be possession with knowledge and assent.

13. These tests can hardly apply to the present appellants on the findings recorded by the learned' Sessions Judge. As I pointed out the solitary baas of their conviction was the remark that they were in the hujra when the explosion had taken place. This presence in the hujra was consistent as much with the appellants' guilt as with their innocence even if such a presence was to be assumed. There being no evidence whatsoever that the appellants had had any concern with the bomb that exploded, much less that they had actually taken it into the hujra, and there being also no evidence that the appellants had had any concern with the hujra itaelf other than the interest which any worshipper could have in the moaque proper, it cannot be suggested that their presence in the hujra at the time supplied the necessary element of the of-fence with which they were charged.

14. As I have already said, I am not satisfied in view of the surprisingly minor injuries which the appellants had received that they were in the hujra, to which effect the learned Sessions Judge has not referred to any evidence in his judgment. But even assuming that wa3 a fact, the requirements of such an offence were not at all established by the prosecution, and it is not possible for me in these circumstances to affirm the conviction.

15. Accordingly, I allow this appeal, set aside the conviction and sentences passed on the appellants and acquit them. They are on bail. They need not surrender.


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