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2010 DIGILAW 711 (CAL)

Samsul Haque v. The State of West Bengal

2010-06-29

ASHIM KUMAR BANERJEE, KALIDAS MUKHERJEE

body2010
JUDGMENT: KALIDAS MUKHERJEE, J. 1. These are the four appeals directed against the common judgment passed by learned Additional Sessions Judge, 5th Court, Alipore in Sessions Trial No. 6 (12) of 1997 sentencing the appellants to suffer imprisonment for life and a fine of Rs.5000/-each in default to suffer imprisonment for one year under Section 302/34 I.P.C. 2. The prosecution case, in short, is that the case was registered being Jaynagar P.S. case No. 37 dated 1.4.1997 on the basis of a complaint lodged by Ali Ahmed Khandekar, Sub-inspector of Police attached to Jaynagar P.S. on 01.4.1997 at 19.45 hours. It has been stated in the F.I.R. that on the basis of a credible information as to the assembly of some absconding criminals, namely, Samsul Haque Mollah, Babar Ali Mondal @ Hatkata Babu, Nur Islam @ Jamai, Kabley and others in the Orchard area near the Railway track at Durgapur Hatpara area, the police personnel after making entry in the G.D. left the P.S. for the spot. It has been alleged that the informant being the P.W. 1 himself along with ASI Ashok Banerjee, constable Milan Sewa, constable Manick Samajdar, constable Rabindra Nath Patra were in one group and in the other group led by the O.C. S. K. Biswas there were other police personnel, namely, Sub-inspector S. N. Pramanick, Sub-inspector L.C. Saha, constable Bhairab Chowdhury, NVF Adbur Rouf Sk., constable Milan Bose, constable Dukha Ranjan Majhi. The G.D. entry was made bearing No. 41 dated 1.4.1997. 3. The informant (P.W. 1) with the other police personnel proceeded along the railway track and met one Sajamal Gayen (P.W. 2) near the railway track who confirmed the prior information of the assembly of the accused persons. Sajamal took the police party to the place of assembly of the accused persons. Reaching there the informant found that some persons were sitting there suspiciously and P.W. 1 challenged them. Soon thereafter those miscreants started hurling bombs and firing from their firearms. The informant along with the members of the force opened fire. P.W. 1 fired one round from his service revolver which could not hit the target. On being directed by P.W. 1, A.S.I. Ashok Banerjee fired from his service revolver, but, Ashok Banerjee thereafter sustained one gun shot injury fired by those miscreants. The informant along with the members of the force opened fire. P.W. 1 fired one round from his service revolver which could not hit the target. On being directed by P.W. 1, A.S.I. Ashok Banerjee fired from his service revolver, but, Ashok Banerjee thereafter sustained one gun shot injury fired by those miscreants. Thereafter, the other constable Rabindra Nath Patra as per order of P.W. 1 fired two rounds from his service revolver causing injury to the accused Babar Ali @ Hatkata Babu. Other miscreants managed to escape. The injured Babar Ali was apprehended on the spot. From the statement of Babar Ali it transpired that the other accused persons were in the gang planning for committing dacoity in the area. It has been alleged in the F.I.R. that accused Babar Ali confessed that he along with his associates, namely, Shamsul Haque Mollah, Nur Islam @ Jamai, Kabley, Gopey @ Nasim Ali were responsible for the dacoity at Baharu, Uttarpara on the previous night of 31.3.1997. He has also confessed that they hurled bombs and fired upon the police party from their firearms with the intent to kill police personnel at the spot. 4. The accused Hatkata Babu was shifted to Nimpit Hospital and the injured A.S.I. Ashok Banerjee was shifted to Dr. Jalil’s Nursing Home and thereafter to hospital in Calcutta in precarious condition. A.S.I. Ashok Banerjee expired in the P.G. Hospital on the same night at about 10.00 P.M. 5. On the basis of the written complaint, A.S.I. Sanjay Kumar Bala (P.W. 39) drew up the formal F.I.R. and the O.C. himself took up investigation of the case. From the place of occurrence, recovery was made in respect of .303 bore revolver, a cartridge, one empty cartridge of .303 bore revolver. Recovery was also made in respect of the one barrel gun with wooden butt from beneath the pillow of the accused Shamsul Haque and one pouch containing .303 cartridges, one improvised country made shot gun from the room of accused Kabley. After completion of investigation the charge sheet was submitted. The charges were framed under Section 149/399/402/332/307 and 302 I.P.C. to which the accused persons pleaded not guilty and claimed to be tried. 6. Accused Babar Ali @ Hatkata Babu made a statement which was recorded as dying declaration by the Executive Magistrate in presence of the doctor. But accused Babar Ali ultimately survived. The charges were framed under Section 149/399/402/332/307 and 302 I.P.C. to which the accused persons pleaded not guilty and claimed to be tried. 6. Accused Babar Ali @ Hatkata Babu made a statement which was recorded as dying declaration by the Executive Magistrate in presence of the doctor. But accused Babar Ali ultimately survived. The other accused Gopey @ Nasim Ali made a confessional statement (Ext. 8) to the Judicial Magistrate which was recorded under Section 164 Cr.P.C. 7. The learned Trial Judge while passing the impugned judgment placed reliance on the statement (Ext. 7) of Babar Ali recorded by Executive Magistrate and the confessional statement (Ext. 8) of accused Gopey recorded by the Judicial Magistrate. The learned Trial Judge observed that the assembly of the accused persons had been proved. The learned Judge observed that the bullet extracted from the left knee of the Babar Ali was the same as fired from the service revolver of P.W. 3 Rabindra Nath Patra. The learned Judge ultimately held the accused persons guilty under Section 302/34 IPC and passed the sentence as stated above. The learned Judge, however, did not pass any separate sentence on the lesser Sections of the charge framed against the accused persons. 8. Mr. Bagchi appearing on behalf of the appellant Babar Ali submits that the prosecution did not produce the G.D. which was the basis of the prosecution case. It is contended that the appellant Babar Ali sustained injury because of the police firing and police was the aggressor. Mr. Bagchi contends that the alleged dying declaration recorded by the Executive Magistrate is inadmissible, inasmuch as, Babar Ali survived and the learned Executive Magistrate did not take the safeguards under the law before recording such statement and there was no certificate of the doctor that appellant Babar Ali was then fit for making such statement. Mr. Bagchi contends that the confessional statement of Gopey recorded by the learned Judicial Magistrate cannot be relied upon, inasmuch as, the learned Magistrate did not record the statement properly. It is contended that the statement made by appellant Gopey cannot be admissible in respect of other appellants. 9. Mr. Bagchi submits that since the I.O. of this case was the member of the raiding party he was very much interested in getting the accused persons convicted and, as such, the investigation made by the I.O. was not proper. It is contended that the statement made by appellant Gopey cannot be admissible in respect of other appellants. 9. Mr. Bagchi submits that since the I.O. of this case was the member of the raiding party he was very much interested in getting the accused persons convicted and, as such, the investigation made by the I.O. was not proper. It is submitted that police caused injury to the appellant on the plea of right of private defence. It is contended that the statement of Babar Ali vide Ext. 7 can neither be said to be confessional statement nor a dying declaration. The statement made by Babar Ali is exculpatory in nature and it cannot be considered in the aid of the prosecution. It is contended that the confessional statement made by accused Nasim Ali cannot be relied upon in absence of any corroborative evidence. It is submitted that the statement of accused Nasim is also exculpatory in nature. Mr. Bagchi submits that the statement of Babar ali and Nasim Ali being exculpatory in nature, it would not go in favour of the prosecution. It is contended that the accused persons were not properly examined under Section 313 Cr.P.C. It is submitted that appellant Samsul died during the pendency of the appeal. 10. Mr. Bagchi contends that the alleged statement under Section 27 of the Evidence Act was not reduced into writing and, therefore, it is inadmissible. It is contended that Section 27 of the Evidence Act has no manner of application in this case. It is contended that there was no contemporaneous documentary evidence to prove that the accused persons were the proclaimed offenders. It is submitted that the recovered bullet from the person of appellant Babar Ali was not sent to the expert for examination. It is submitted that the impugned judgment is based on surmise and conjecture and there was no finding of the learned Trial Judge that the accused persons were the aggressors. It is contended that there was no explanation from the prosecution as to the bullet injury sustained by the appellant Babar Ali. Mr. Bagchi submits that most of the witnesses examined by the prosecution are police officers and they are the partisan witnesses. 11. Mr. It is contended that there was no explanation from the prosecution as to the bullet injury sustained by the appellant Babar Ali. Mr. Bagchi submits that most of the witnesses examined by the prosecution are police officers and they are the partisan witnesses. 11. Mr. Sudip Ghosh Chowdhury appearing on behalf of the appellant Gopey @ Nasim Ali submits that the statement of co-accused is the weak piece of evidence and in absence of any corroborative material the alleged confessional statement by accused Gopey cannot go in favour of prosecution. It is submitted that the prosecution case cannot be believed, inasmuch as, most of the witnesses examined by the prosecution are the police officers and as a counterblast of police firing it would appear that accused Samsul opened fire. It is submitted that Sajamal who allegedly led the police party to the spot did not support the prosecution case. It is contended that no arms were recovered from the possession of accused Gopey and there is no element of common intention. It is submitted that T.I. parade was not held and there is no allegation under the Arms Act. 12. Ms. Minoti Gomes appearing on behalf of the appellant Kabley adopted the argument advanced by Mr. Bagchi. 13. It appears that appellant Samsul expired during the pendency of the appeal and, as such, the appeal being No. CRA 119 of 2000 filed by appellant Samsul abated under Section 394 Cr.P.C. 14. Mr. Ghosal appearing on behalf of the prosecution submits that the appellant Babar Ali is the injured accused who was arrested on the spot. It is contended that without any provocation the accused persons opened fire and police firing was subsequent to the firing made by the accused. It is contended that Asok Banerjee ASI of police sustained bullet injury and ultimately succumbed to the injuries. 15. Mr. Ghosal submits that the learned Executive Magistrate being an impartial government official recorded the declaration of appellant Babar Ali and such statement can be relied on. It is submitted that the confessional statement of Gopey @ Nasim Ali was recorded by the learned Judicial Magistrate under Section 164 Cr.P.C. and there was no suggestion from the defence that it was wrongly recorded and there was no petition for retraction. Mr. It is submitted that the confessional statement of Gopey @ Nasim Ali was recorded by the learned Judicial Magistrate under Section 164 Cr.P.C. and there was no suggestion from the defence that it was wrongly recorded and there was no petition for retraction. Mr. Ghosal contends that some arms were seized from the P.O. It is contended that in pursuance of the statement made by Babar Ali the arms were recovered from Samsul. Mr. Ghosal contends that the G.D. number was mentioned in the F.I.R. itself, but, it was not produced at the time of trial. It is contended that in the statement recorded under Section 313 Cr.P.C. the accused persons did not state for what purpose they assembled there. It is submitted that the ASI of police Ashok Banerjee being a member of the raiding party sustained bullet injury and expired due to such gun shot injury. It is submitted that the doctor holding the post mortem examination opined that death was due to gunshot and it was homicidal in nature. It is submitted that the accused persons first hurled bombs at the police party. Mr. Ghosal submits that the learned Trial Judge was justified in convicting the accused under Section 302/34 I.P.C. and passing the sentence under the impugned judgment. 16. P.W. 1 to P.W. 6 are the members of the raiding party led by P.W. 1. P.W. 7 to P.W. 11 are the members of the other group of police officials led by the O.C. It is in evidence of P.W. 1 Ali Ahmed Khandekar that on 01.4.1997 at about 5.45 P.M. a person came to the P.S. and reported that some dacoites, namely, Samsul Haque, Kabley, Hatkata Babu @ Babar Ali, Gopey and Nur Islam @ Jamai were found sitting in a bush near Ramkrishnapur Hatpara on railway track between Jaynagar and Baharu. It is in his eviddence that on receipt of the news, O.C. Sudhir Kumar Biswas, S.I. Lakshmi Saha, S.I. Sambhu Nath Pramanick, P.W. 1 himself and other members of the force including ASI Ashok Banerjee proceeded to the spot; they separated themselves into two groups; in his group there were ASI Ashok Banerjee, constables Milan Sewa, Rabindra Nath Patra, Manick Samajdar, while in the other group there were O.C. and other police personnel; they proceeded on foot and while walking along the railway track they met one Sajamal coming from opposite direction who led them to the spot. It is also in his evidence that on reaching the spot they found some persons near a bush and he disclosed his identity as a member of the police force. P.W. 1 has stated that those miscreants hurled bombs against them. It is in the evidence of P.W. 1 that he opened fire, but, it did not hit the target; thereafter, he asked ASI Ashok Banerjee to open fire and, accordingly, Ashok Banerjee fired from his service revolver. At this point the miscreants also opened fire and Ashok Banerjee sustained gunshot injury on the head fired by the miscreants. Under the direction of P.W. 1, constable Rabindra Nath Patra also opened fire and thereafter Hatkata Babu @ Babar Ali sustained bullet injury and was apprehended, but, other miscreants fled away. Injured ASI Ashok Banerjee was taken to Dr. Jalil’s Nursing Home and therefrom he was taken to SSKM Hospital, Kolkata and on the same day he died at the hospital. The accused Hatkata Babu @ Babar Ali who sustained injury was shifted to Nimpit Hospital for his treatment. This P.W. 1 was corroborated on material particulars by the other police personnel. P.W. 2 Sajamal who led the police party to the spot, although declared hostile, clearly stated that he heard the sound of explosion of bombs and met the police party at the time and place of occurrence. He is an independent witness and he was present at that time. He also admitted his signature in the seizure list. 17. It is in evidence that while Babar Ali was admitted in hospital his statement was recorded by an Executive Magistrate in the nature of dying declaration (Ext. 7). The declaration of Babr Ali was recorded by the Executive Magistrate in the question-answer form in presence of a doctor. He also admitted his signature in the seizure list. 17. It is in evidence that while Babar Ali was admitted in hospital his statement was recorded by an Executive Magistrate in the nature of dying declaration (Ext. 7). The declaration of Babr Ali was recorded by the Executive Magistrate in the question-answer form in presence of a doctor. It is in his declaration that he along with Shamsul, Kabley, Nur Islam @ Jamai and Gopey assembled there and when the six/seven police officers were coming, Samsul opened fire. It is also in his declaration that Nur Islam, Kabley & Gopey fled away along the paddy field and he sustained bullet injury. It has also been stated therein that Samsul had pipe gun and Kabley had hand made machine, Gopey had three bombs; Nur Islam and he had no arms. He has stated that they committed dacoity at Baharu on 31st at about 1.00 A.M.; Samsul and Nur Islam fled away. It is the contention of Mr. Ghosal that the above declaration was recorded by an Executive Magistrate being an impartial person and it can be relied upon. Mr. Bagchi submits that the said declaration is inadmissible and it cannot come in the aid of prosecution, inasmuch as, the learned Executive Magistrate did not take the statutory safeguards and he had no authority to record such statement under Section 164 Cr.P.C.; that the said declaration cannot be treated as dying declaration because of the fact that Babar Ali survived. Mr. Bagchi has referred to and cited the decisions reported in AIR 1966 SC 119 para 12 [Aghnoo Nagesia V. State of Bihar]; 1983 SC 126 para 7 [Maqsoodan and others Vs. State of U.P.]; AIR 1997 SC 940 para 20 [Sunil Kumar and others Vs. State of Madhya Pradesh]; AIR 1972 SC 2077 [Nika Ram Vs. The State of Himachal Pradesh]; 1987 Cr.L.J. 1533 (Gauhati) [Ashim Das and etc. V. State of Assam]; 1997 Cr.L.J. 467 (Bom.) [Bhasusaheb alias Babu Vs. State of Maharashtra]; 1995 Cr.L.J. 396 [State of Haryana Vs. Parmanand son of Rati Ram]; AIR 1964 SC 358 [State of Uttar Pradesh Vs. Singhara Singh and others]; AIR 1954 SC 15 para 13 [Zwinglee Ariel Vs. State of Madhya Pradesh]; AIR 1981 SC 2007 [State of Madhya Pradesh Vs. Dayaram Hemraj]; AIR 1951 SC 159 [Kashmira Singh Vs. State of Madhya Pradesh]; AIR 1953 SC 131 [Kalawati and Anr. Parmanand son of Rati Ram]; AIR 1964 SC 358 [State of Uttar Pradesh Vs. Singhara Singh and others]; AIR 1954 SC 15 para 13 [Zwinglee Ariel Vs. State of Madhya Pradesh]; AIR 1981 SC 2007 [State of Madhya Pradesh Vs. Dayaram Hemraj]; AIR 1951 SC 159 [Kashmira Singh Vs. State of Madhya Pradesh]; AIR 1953 SC 131 [Kalawati and Anr. Vs. State of Himachal Pradesh]; AIR 1956 SC 56 [Nathu Vs. State of Uttar Pradesh]; 2007(12) SCC 230 [Aloke Nath Dutta Vs. State of West Bengal]; AIR 2007 SC 420 [Babubhai Parmar Vs. State of Gujarat]; 1979 SCC (Cri) 982 [Bahadul @ Ghanshyam Padhan Vs. State of Orissa]; 1993 SCC (Cri) 1053 [Bhimappa Jinnappa Naganur Vs. State of Karnataka]; 1983 SCC (Cri) 139 [Md. Abdul Hafeez Vs. State of Andhra Pradesh]; 2001 Cr.L.J. 3290 (SC) [State of M.P. Vs. Supra]; 1976 Cr.L.J. 1736 [Lakshmi Singh & Ors. Vs. State of Bihar]; 1984 SCC (Cri) 487 [Sharad Birdhichand Sharda Vs. State of Maharashtra]; AIR 1953 SC 420 [Ramnath Madhoprasad and Ors. Vs. State of Madhya Pradesh]; AIR 1955 SC 216 [Pandurang and Ors. Vs. State of Hyderabad]; AIR 1951 SC 441 [Tara Singh Vs. The State]; 1997 SCC (Cri) 358 [Jaspal Singh Vs. State of Punjab]; 1999 SCC (Cri) 493 [Ahmed Bin Salam Vs. State of Andhra Pradesh]; 2002(6) SCC 470 [Harijana Thirupala and Ors. Vs. Public Prosecutor]. 18. It has been held in the decision reported in AIR 1966 SC 119 para 12 [Aghnoo Nagesia V. State of Bihar] (Supra) that when an admission of an accused is sought to be used against him, the whole of it should be tendered in evidence, and where a part of the admission is exculpatory and a part inculpatory, the prosecution cannot use in evidence the inculpatory part only. 19. In the decision reported in AIR 1983 SC 126 para 7 (Maqsoodan and others Vs. State of U.P.] (Supra) it has been held that when a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. 20. In the decision reported in 1987 Cr.L.J. 1533 (Gauhati) [Ashim Das and etc. etc. State of U.P.] (Supra) it has been held that when a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. 20. In the decision reported in 1987 Cr.L.J. 1533 (Gauhati) [Ashim Das and etc. etc. V. State of Assam] (Supra) it has been held that the statement under Section 164 Cr.P.C. can be recorded by Judicial Magistrate and the statement of witnesses recorded by Executive Magistrate has no value in the eye of law. 21. In the case reported in 1995 Cr.L.J. 396 (P & H) para 11 [State of Haryana Vs. Parmanand son of Rati Ram](Supra) it has been held that confessional statement of accused can be recorded only by Judicial Magistrate under Section 164 Cr.P.C. and the recording of such statement by Executive Magistrate is not admissible in evidence. 22. In the case reported in AIR 1964 SC 358 paras 8, 15 & 21 [State of Uttar Pradesh Vs. Singhara Singh and others] (Supra) it has been held that confession recorded by Magistrate not being empowered, oral evidence to prove such confession is not admissible and will be of no avail. 23. In the decision reported in 2001 SCC (Cri) 652 para 25 [Dhanajaya Reddy Vs. State of Karnataka] (Supra) it has been held that confession not recorded in accordance with law cannot be treated as extra judicial confession. 24. From the decisions cited above it is clear that Ext. 7 cannot be treated as dying declaration, inasmuch as, Babar Ali ultimately survived. The Executive Magistrate has no authority to record the purported confessional statement of accused Babar Ali under Section 164 Cr.P.C. Moreover, the statement was recorded in question-answer form with leading questions and no warning was given to the maker of such statement. The signature of the maker Babar Ali was also not taken. 25. We are, therefore, of the considered view that ext. 7 can neither be treated as dying declaration nor can it be said to be a confessional statement. Ext. 7 cannot be relied upon as extra judicial confession as well. 26. The signature of the maker Babar Ali was also not taken. 25. We are, therefore, of the considered view that ext. 7 can neither be treated as dying declaration nor can it be said to be a confessional statement. Ext. 7 cannot be relied upon as extra judicial confession as well. 26. It is in evidence that after the incident the arms were recovered from the house of P.W. 14 Fakira Mondal who has stated that he is a mason by profession; on 1.4.1997 he along with 40/50 people had gone to the railway track and found that police party was searching the paddy field of Sahalam Molla; police seized one revolver with a cartridge from the paddy field. He has further stated that police found an empty cartridge from a nearby bush; these articles were seized under a seizure list and he signed in the seizure list as a witness. He has identified the revolver and the cartridges which were seized from the paddy field. 27. P.W. 15 also signed the seizure list in respect of the arms seized from the paddy field. P.W. 16 has stated that he deals in fruits and he found that Ashok Banerjee was being taken to Kolkata hospital by ambulance; he accompanied the policemen as well as the members of the public to a place near the railway track wherefrom police seized blood stained earth, a black shawl, chord fitted with the bomb, some stone chips, hawai chappals and other articles. He signed the seizure list. 28. P.W. 17 is the owner of a stall; he used to sell Thumps up and other cold drinks. It is in his evidence that on 1.4.1997 at about 4/5 p.m. Gopey came to his stall and took Thumps up cold drinks bottles by telling that those were wanted by Samsul; a little thereafter he returned those bottles and paid the price and took away a packet of Charminar cigarette; behind his stall there was an orchard and the railway track; taking the packet of cigarette Gopey proceeded towards the orchard; thereafter he came to learn that there was exchange of fire between the police and the dacoits and a police officer died. In the cross-examination he has stated that he knows Gopey as a man of his locality. 29. In the cross-examination he has stated that he knows Gopey as a man of his locality. 29. P.W. 19 has stated that on 4.4.1997 he was proceeding on bycycle towards Danria; police called him and asked him to accompany them to the house of Rajab Ali; it was then 5.30/6 A.M. when police knocked door the door of the house of Rajab Ali; doors were opened and police brought out two men from two rooms of the house; on being interrogated they disclosed their names as Samsul Haque Molla and Kabley; Shamsul brought out a gun with a red-wooden handle and three loose cartridges and some other cartridges contained in a pouch; the gun had a cartridge with it. Police seized those articles. He has further stated that Kabley brought out a pistol from his room along with a cartridge and a loose cartridge from his bed; police seized the articles and the seizure list was prepared. He has stated that he signed the seizure list. He has also proved his signature on the label pasted on the gun. In the cross-examination he has stated that he has his licence for his printing business. He has further stated that Rajab Ali, the landlord, does not reside in the said house; Rajab Ali was not present at that time. 30. The I.O. (P.W. 41) stated that on 4.4.1997 he conducted raid for securing the arrest of absconding accused persons after getting information at Boyrasingh within P.S. Canning with the assistance of Canning and Baruipur P.S. and both the O.Cs. accompanied him during the raid. It is in his evidence that arms were recovered from the possession of Samsul and Kabley. So it is clear that the recovery of arms from Samsul and Kabley was made on the basis of the information received at Boyrasing within Canning P.S. It is, therefore, not the case of the prosecution that in furtherance of the statement of the accused the arms were recovered from Samsul and Kabley under Section 27 of the Arms Act. This recovery of arms on the basis of information received at boyrasing within Canning P.S. cannot be said to be doubtful. The recovery of arms also strengthens the involvement of the appellants in the alleged offence. It also finds corroboration from the confessional statement of Gopey. 31. This recovery of arms on the basis of information received at boyrasing within Canning P.S. cannot be said to be doubtful. The recovery of arms also strengthens the involvement of the appellants in the alleged offence. It also finds corroboration from the confessional statement of Gopey. 31. P.W. 20 also witnessed the seizure of firearms from Samsul Haque Molla, Kabley and he signed the seizure list and the label pasted on the articles. 32. P.W. 22 Jehan Ali, has stated that his maternal cousin brother Gopey one year ago had once come to his house along with his family asking for shelter saying that he along with others had come upon a railway track to commit dacoity where some police personnel arrived; in exchange of fire one police died and he along with others fled away. It is in the evidence of P.W. 22 that he gave shelter to Gopey for 15 days and within that period police came to his house and arrested Gopey. He has further stated that Gopey mentioned the names of other accused persons, namely, Nur Islam, Shamsul, Babar Ali and Kabley. He has also stated that he had made a statement before the Magistrate. The evidence of P.W. 22 Jehan Ali assumed much importance because he had earlier made a statement to the learned Judicial Magistrate under Section 164 Cr.P.C. There is no discrepancy between his evidence at the time of trial and the statement under Section 164 Cr.P.C. 33. P.W. 23 and P.W. 25 are the Judicial Magistrates who recorded the statement of witness and the confessional statement of accused Gopey. P.W. 33 to 38 are the medical witnesses. P.W. 37 held the Post Mortem examination of the police officer Ashok Banerjee. P.W. 41 is the I.O. 34. P.W. 33 is the doctor who has stated that the patient Babar Ali sustained bullet injury in the left knee joint. P.W. 34 has stated that he conducted an operation on the body of patient Babar Ali and extracted one bullet from his body. 35. Accused Gopey made a confessional statement which was recorded by the Judicial Magistrate and it has been marked Ext.8. P.W. 34 has stated that he conducted an operation on the body of patient Babar Ali and extracted one bullet from his body. 35. Accused Gopey made a confessional statement which was recorded by the Judicial Magistrate and it has been marked Ext.8. The accused Gopey stated in his confessional statement that on the previous night of 1.4.1997 he along with Samsul, Hatkata Babu @ Babar Ali, Kabley, Nur Islam and three others from outside went to Baharu for committing dacoity and after committing dacoity in a house they got one bhari of gold, one bhari of silver, some amount of coins and thereafter they came to Durgapur and distributed the booty amongst them. It is also in his statement that on 1.4.1997 at about 6.00 P.M. they assembled near the railway track and at that time police came there and three persons were apprehended by police on that night; Gopey started fleeing away and at that time police opened fire and Babar Ali sustained bullet injury in his leg; Samsul at that time fired from his pipe gun. 36. It is the contention of Mr. Bagchi that the confessional statement vide Ext. 8 of Gopey is exculpatory and, therefore, it cannot come in the aid of the prosecution. On perusal of the statement we find that the learned Magistrate before recording confession put several questions to him as required under the law and after being satisfied that the said statement was made voluntarily, he recorded the same. The learned Magistrate also certified at the bottom of the statement that it was made voluntarily. 37. We are satisfied about the voluntariness, truthfulness of the confession. There are also corroborative evidence on material particulars. Mr. Bagchi contends that the police was the aggressor and, thereafter, Samsul allegedly fired from his pipe gun. We are unable to accept such contention of Mr. Bagchi, inasmuch as, it would appear from the evidence of the P.Ws that the accused persons first hurled bombs towards the police personnel and, thereafter, police opened fire. It cannot be said that police was the aggressor. From the statement of accused Gopey it is clear that there was assembly of the accused persons at the P.O. and on being challenged by police they attacked the police personnel. The statement of accused Gopey is very much confessional in nature and it cannot be said to be exculpatory. It cannot be said that police was the aggressor. From the statement of accused Gopey it is clear that there was assembly of the accused persons at the P.O. and on being challenged by police they attacked the police personnel. The statement of accused Gopey is very much confessional in nature and it cannot be said to be exculpatory. The learned Trial Judge observed that in the LCR one unpunched petition was filed on 22.7.1997 and neither any date was fixed by the Court for hearing nor any order was passed on that petition. Learned Judge observed that the confessional statement vide Ext. 8 was voluntarily made. It appears that the confessional statement was made on 25.6.1997 and the retraction petition was filed on 22.7.1997. The retraction by filing a petition was made long after such statement was recorded under Section 164 Cr.P.c. and, as such, it can reasonably be said to be an afterthought. 38. From the seizure list it also appears that from the P.O. remnants of bombs were seized. From Ext. 12 it appears that ASI Ashok Banerjee sustained bullet injury and ultimately succumbed to the injury on 01.04.1997 at 10.20 P.M. Ext. 21 is the report of the expert who examined the seized firearms. It appears that the improvised gun was found in working condition on test, marks of fire were found inside the barrel and the cartridges also could be fired from the said gun. Ext. 22 is the FSL report wherefrom it would appear that there was trace of chemicals such as Aluminium, Nitrite, Potassium, Sulphite, Chloride and Arsenic in the paper packet marked ‘M’ which contained some pieces of jute twines bearing burnt marks, stone chips, iron nails and nuts small quantity of white coloured powdered ash. In another report of FSL it was stated that blood was detected on the stone chips and dusty materials. This relates to the seized materials from the spot. The evidence of Jehan Ali (P.W.22) is also supported by his previous statement under Section 164 Cr.P.C. He is a disinterested witness. The seizure witnesses, namely, P.W. 14, P.W. 15, P.W. 16, P.W. 19 & P.W. 20 are the disinterested witnesses. 39. It is the contention of Mr. This relates to the seized materials from the spot. The evidence of Jehan Ali (P.W.22) is also supported by his previous statement under Section 164 Cr.P.C. He is a disinterested witness. The seizure witnesses, namely, P.W. 14, P.W. 15, P.W. 16, P.W. 19 & P.W. 20 are the disinterested witnesses. 39. It is the contention of Mr. Bagchi that the I.O. of this case being a member of the raiding party was very much interested in getting the accused persons convicted and the investigation made by him caused prejudice to the accused persons. We are unable to accept such contention. The O.C. led the second raiding party and took up the investigation under the law. It did not cause any prejudice to the accused persons. We have gone through the statements of the accused persons recorded under Section 313 Cr.P.C. and we find that these statements were recorded properly. 40. As regards the non-production of G.D. at the time of trial, we find that in the F.I.R. itself it has been mentioned that after receiving information the G.D. entry No. 41 dated 1.4.1997 was made. In the cross-examination also the I.O. (P.W. 41) has stated that it was mentioned in the G.D. that they lodged diary receiving a credible information regarding dacoity and that in the F.I.R. itself the G.D. entry No. 41 dated 1.4.1997 was mentioned. 41. The I.O. has stated that on 19.6.1997 he seized one bullet head which was collected by S.I. Ali Ahmed Khandaker after it was recovered from the person of accused Babar Ali Mondal during operation. The said bullet head was seized and it was identified by the I.O. being material Ext. IX. Mr. Bagchi contends that the I.O. did not get it examined by the expert to prove that it was fired by P.W. 3. We find that the prosecution case cannot fail only on the ground of negligence on the part of I.O, if the case is otherwise proved. From the evidence on record it is clear that accused Babar Ali sustained bullet injury in an encounter with the police where the accused persons were the aggressors. 42. Mr. Bagchi contends that the prosecution could not give explanation as to how the bullet injury was sustained by the appellant Babar Ali Mondal. From the evidence on record it is clear that accused Babar Ali sustained bullet injury in an encounter with the police where the accused persons were the aggressors. 42. Mr. Bagchi contends that the prosecution could not give explanation as to how the bullet injury was sustained by the appellant Babar Ali Mondal. We are unable to accept such contention, inasmuch as, there is ample evidence on record that when the police personnel challenged the assembly of accused persons as to their identity, they hurled bombs at the police and thereafter the police opened fire. 43. The contention of Mr. Bagchi that the most of the witnesses examined by the prosecution are police personnel and their evidence cannot be said to be credible. We are unable to accept such contention of Mr. Bagchi. The testimony of the police officers cannot be disbelieved merely because they are the police personnel. Besides the police personnel there are some independent witnesses as we have discussed earlier. The confessional statement of Nasim Ali involving other accused persons can be relied upon, inasmuch as, there are other corroborative materials. Moreover, in a joint trial the confession made by one accused involving others is admissible under Section 30 of the Evidence Act. 44. Babar Ali was arrested by the police on the spot. The seizure of arms was made from the spot and subsequently the arrest of Samsul, Kabley and the recovery of the arms from their possession are sufficient to prove that they assembled at the P.O. on the date of incident. From the confessional statement of Nasim Ali it is also clear that Samsul opened fire from his pipe gun. It is also in evidence that ASI Ashok Banerjee sustained bullet injury and ultimately succumbed to the injuries. 45. The learned Trial Judge convicted the accused persons under Section 302/34 I.P.C. It is the contention of Mr. Bagchi with reference to the decisions cited above that Section 34 is not applicable in the circumstances of this case. We are of the considered view that from the evidence on record it is clear that the accused persons formed an assembly and attacked the police personnel and by the firing of accused Samsul, ASI Ashok Banerjee sustained injury and ultimately died. We are of the considered view that from the evidence on record it is clear that the accused persons formed an assembly and attacked the police personnel and by the firing of accused Samsul, ASI Ashok Banerjee sustained injury and ultimately died. The accused persons were all present at the spot and because of their pre-arranged plan they assembled there and when challenged by the police they hurled bombs and opened fire causing the death of ASI Ashok Banerjee. There was overt act and they acted in furtherance of the common intention of all. Under such circumstances Section 34 I.P.C. is squarely applicable and the learned Trial Judge was justified in convicting the appellants and passing sentence under the impugned judgment. 46. There is no ground to interfere with impugned judgment passed by the learned Trial Judge. The impugned judgment is affirmed. The Criminal Appeal No. 313 of 2000, CRA 138 of 2000 & CRA 233 of 2000 are, therefore, dismissed. CRA 119 of 2000 has abated under Section 394 Cr.P.C. 47. Let a copy of this judgment be sent to the concerned Correctional Home where the appellants are now detained. 48. Let a copy of this judgment along with the L.C.R. be sent down to the learned Court immediately. 49. Urgent certified Photostat copy, if applied for, be handed over to the parties as early as possible. I agree.