JUDGMENT Asim Ray, J. 1. THE Judgment of the Court was delivered by This appeal is directed against the judgment and order passed in Sessions Trial No. 220 of 2007 by learned Additional District and Sessions Judge, Fast Track 3rd Court, Howrah thereby convicting the appellant under sections 399/402 of Indian Penal Code and sentencing him to undergo R.I. for five years and to pay a fine of Rs.2,000/-, in default to suffer S.I. for one month for an offence punishable under section 399 of IPC and further sentenced him to suffer R.I. for five years and to pay a fine of Rs. 2,000/-, in default to suffer S.I. for one month more for the offence punishable under section 402 of IPC. There is an order to the effect that both the punishment shall run concurrently. 2. FACTUAL background in a nutshell is that Sub-inspector, Subhas Jana, Officer-in-Charge of Shalimar Police Station received a source information to the effect that 7/8 dacoits have assembled at Santragachi railway station to commit dacoity in Up-Puri Passenger train on 19-8-2005. That information was recorded in the G.D. book vide Entry No. 1037 dated 19-8-2008. He left the police station with constable Nagendranath Roy, Swapan Mazhi, Debasish Mondal and Biswanath Maity and proceeded towards Santragachi railway station by police vehicle No. WB-347-8210. He informed Officer-in-charge, R.P.F. general over phone. Around 23.25 hours they reached Santragachi railway station where RPF force and public witnesses, namely, Bisu Das and Haradhan Ghosh joined. They arrived at platform No. 2 and 3 of Santragachi railway station and divided themselves into two parts to apprehend the assembled persons. Realising the arrival of the police personnel the assembled persons tried to flee away from the spot but three of them were apprehended after a short chase while 4/5 persons managed to escape. The apprehended persons were searched by police and from the possession of Gautam Adhikary, Somnath Bhattachariya (appellant) and from another accused person one pipe gun loaded with 303 ammunition, one knife, one razor and mobile phone respectively were recovered. Those articles were seized by preparing a seizure list in presence of witnesses. Signature of the accused persons were taken on the seizure list. Labels were pasted on the seized articles and the signature of the witnesses and the accused persons were taken on those levels. Those articles were seized by preparing a seizure list in presence of witnesses. Signature of the accused persons were taken on the seizure list. Labels were pasted on the seized articles and the signature of the witnesses and the accused persons were taken on those levels. Thereafter accused persons were brought to the police station along with the seized articles. The de facto complainant lodged a complaint at the police station and the Shalimar G.R.P.S. Case No. 19 of 2005 dated 20.8.2005 under sections 399/402 of IPC read with 25and27 Arms Act was started. The matter was investigated into and charge sheet was submitted. The case was committed to the learned Court of Sessions Judge by learned Chief Judicial Magistrate, Howrah and the learned Sessions Judge, Howrah transferred the case to the Court of Additional District and Sessions Judge, Fast Track 3rd Court, Howrah for disposal. Charge under sections 399/402 of IPC was framed" against the appellant Somenath Bhattacharjee. The trial of the matter was taken up. In course of trial twelve witnesses were examined. Beside oral evidence the seized article was exhibited as Mat. Ext. The accused/ appellant was examined under section 313 of Cr PC and on conclusion of the trial the appellant was convicted and sentence was passed against him, so this appeal. 3. MR. Debajyoti Deb, learned advocate appearing for the appellant has placed the judgment passed by the learned Additional District and Sessions Judge, Fast Track 3rd Court, Howrah. Beside it the evidence of prosecution witnesses were placed. It has been contended by MR. Deb that section 391 of Indian Penal Code demands the presence of five or more persons in case of committing a dacoity and in the instant case only three persons have been charged with the offence punishable under sections 399/402 of IPC i.e. for committing dacoity and as such it is hit in the eye of law. It is not maintainable. 4. HE has further contended that there is anomaly regarding the place of seizure and the seizure itself. The general diary which is claimed to have been recorded by the complainant at the time of departure from the Shalimar police station has not been produced before the learned Court below. The label of Mat. exhibits reflected different G.D. number. The seizure is suspicious and not believable. The general diary which is claimed to have been recorded by the complainant at the time of departure from the Shalimar police station has not been produced before the learned Court below. The label of Mat. exhibits reflected different G.D. number. The seizure is suspicious and not believable. HE has also contended that evidence of the prosecution witnesses disclosed that some passenger were there at the platform even then they were not called for to witness the seizure. R.P.F. personnel who were alleged to have been there and accompanied the de facto complainant have not signed the seizure list and there is no explanation to that effect as to why they did not put their signature on the seizure list even their pressure at the spot was claimed by the prosecution. Independent witness Haradhan Ghosh/P.W.2 has failed to identify the appellant. The evidence on record is conflicting as to where the seizure was made. Some say that it was on the platform and some says it was at Santragachi office. The evidence on record further gives contradictory thing regarding the duration of seizure. Some says 15/20 minutes some says 40/45 minutes and so on. The judgment and order of conviction and sentence may be set aside. Mr. Deb has cited the decisions reported in AIR 1979 SC 1412 (Chaturi Yadav and others v. State of Bihar), AIR 1983 SC 352 (1) (Ram Lakhan v. State of U.P.), 2008 (1) C Cr LR(Cal) 142 (Sk. Rezaul @ Dalai Rezaul v. State of West Bengali and 2002 C Cr LR (Cal) 986[Shew Kumar Rai and Ors. v. State of West Bengal) to substantiate his contention. Mr. Swapan Kumar Mallick, learned advocate appearing for the State has contended that there were in all 7/8 persons at the Santragachi railway stationand the intention of those persons was to commit dacoity in Up-Puri Passenger train. Police personnel tried to apprehend all those persons but have succeeded in apprehending three persons and the rest managed to escape. Therefore, the ingredient of section 391 of IPC is well established and that is why the appellant was tried, convicted and sentenced for the offence punishable under sections 399/402 of IPC. Mr. Mallick has invited the attention of the Court to the evidence of prosecution witnesses regarding the number of persons who assembled at the spot to commit dacoity. Therefore, the ingredient of section 391 of IPC is well established and that is why the appellant was tried, convicted and sentenced for the offence punishable under sections 399/402 of IPC. Mr. Mallick has invited the attention of the Court to the evidence of prosecution witnesses regarding the number of persons who assembled at the spot to commit dacoity. He has also contended that the appellant was examined under section 313 of Cr PC by the learned Court below. He gave stereo type answer to all questions and even did not give any explanations about the seizure of knife from his possession. There was no suggestion even from the defence during cross-examination of prosecution witnesses that no knife was seized from the possession of the appellant and the appellant and others were assembled at Santragachi railway station for any other purpose. The citation placed by Mr. Deb have no application in this matter. The order of conviction and sentence passed by the learned Court below may be affirmed. 5. I have perused the judgment impugned and have gone through the evidence on record as well as the examination sheet of the accused under section 313 of Cr PC. 6. THE prosecution has claimed that Sub-inspector Subhash Jana, O.C. of Shalimar P.S. on receipt a source information about the assembly of 7/8 dacoits at Santragachi railway station recorded the same in G.D. book vide entry No. 1037 dated 19-8-2005 and left for Santragachi railway station to work out the information. THE learned lawyer of the defence had a point blank submission that the GD entry has not been produced so there is no reason to believe the case of the prosecution. THE judgment of the learned Court below has not covered the said argument. I have gone through the record and has not find any explanation as to why the said GD entry being No. 1037 dated 19-8-2005 claimed to have been recorded by Sub-inspector Subhas Jana, O.C. of Shalimar P.S. at the time of his departure was not produced. Therefore, the fabric of the prosecution case has been loosen at its base. There was another argument before the learned Additional District Judge that labels of Mat. Exhibit had different GD entry number so the seizure became suspicious. That point too has not been covered by the judgment passed by the learned Court below. Therefore, the fabric of the prosecution case has been loosen at its base. There was another argument before the learned Additional District Judge that labels of Mat. Exhibit had different GD entry number so the seizure became suspicious. That point too has not been covered by the judgment passed by the learned Court below. The appellant has faced the trial alone and the case against two other persons were filed as they were absconding. The learned Court below has relied on the prosecution witnesses, specially the evidence of two public witnesses, namely, Haradhan Ghosh/P.W.2 and Bishu Das/P.W.6. 7. P.W.2, Haradhan Ghosh is a rickshaw puller by profession. It is claimed that he keeps his rickshaw near Santragachi booking counter. He has stated that he was taken between platform No. 2 and 3 by GRPS and R.P.F. force. On reaching there they found that police force apprehended three persons. Apprehended persons were brought near to them. He was asked by police as to whether he found anything in the possession of accused persons. He replied that he found one pipe gun in the hand of one accused person and one knife in the hand of another accused, he found one 'Vojali' in the possession of one accused person. He signed the seizure list as per direction of the police. He has failed to identify the appellant/accused in Court. He was cross-examined at length. In his cross-examination he has stated that they apprehended three persons who sitting in the platform like passenger. 4/5 persons were on the platform. No passenger of the train was called. Though some passengers were present. He does not aware about the contents of the seizure list. He put his signature on the seizure list as police asked him to do that. In the similar way he put his signature on three labels. He did not aware of the contents of the same. The content of the seizure list and the labels were not read over to him. 8. PROSECUTION witness No.6 Bishu Das has stated that he is not aware of the contents of the seizure list of the papers/labels which bears his signature. He has signed the seizure list and the labels after 12 in the night when the police enquired him at the station. Apprehended persons were at the railway platform and not at the Counter where he met police. He has signed the seizure list and the labels after 12 in the night when the police enquired him at the station. Apprehended persons were at the railway platform and not at the Counter where he met police. He has stated that papers were prepared at the place of occurrence. P.W. No.3 is constable Biswanath Maity. He has stated in his evidence that some passenger were at the platform to avail the trian. They were also called but he cannot say their names. They were called by him. They were there for about 15/20 minutes. He has stated further that those three persons who were apprehended were carrying arms which was seized. P.W. No.8, Subhas Jana is the de facto complainant. He is Sub-inspector of police. In his cross-examination he has stated that at the place of occurrence public witnesses were not available but two public witnesses were taken from the place of booking counter. They reached the booking counter around 23.45 hours. In the labels the reference of the G.D. No. was mentioned. The reference G.D. Nos. were 939 and 941. In the seizure list the reference No. 937 was mentioned. 9. P.W.9, Sanjoy Bahadur Sanwar is a R.P.F. constable. He has stated that he cannot recollect at on which particular place search and seizure was made. He cannot say whether any diary was lodged before leaving the police station for search and seizure. P.W. 10 Swapan Mazhi is a constable of police. He has stated in his cross-examination that it is not possible to say what was found from the possession of accused persons. The accused person was carrying knife on that day. Seizure list was prepared at Santragachi office. He cannot say as to whether any diary was lodged at the time of leaving Shalimar GRPS. 10. P.W. 11, Sanjoy Kumar Tewari is an Inspector of CIB. He has stated in his cross-examination that no public were present at the P.O. as it was late night. P.W. 12 Bidhan Chandra Saha is also a Sub-Inspector of police. He has stated in his cross-examination that in three labels marked at Ext. 2, 3 and 4 G.D. entry No. 941 dated 19-8-2005, 941 dated 19-8-2005 and 939 were mentioned. He has stated in his cross-examination that no public were present at the P.O. as it was late night. P.W. 12 Bidhan Chandra Saha is also a Sub-Inspector of police. He has stated in his cross-examination that in three labels marked at Ext. 2, 3 and 4 G.D. entry No. 941 dated 19-8-2005, 941 dated 19-8-2005 and 939 were mentioned. He has further stated that GD entry book was seized at Shalimar GRPS as well as R.P.F. On analysis of the evidence on record and the materials thereto, I find that the GD entry being No. 1037 dated 19-8-2005 claimed to have been recorded by Sub-Inspector Subhash Jana, O.C. of Shalimar Police Station at the time of departure has not been produced. There is no explanation as to why the said GD was not produced. The de facto complainant Sub-inspector Subhash Jana as prosecution witness No.2 have given three different GD entry numbers in course of his evidence. The existence of different GD numbers surfaced during trial make the prosecution case doubtful. Independent seizure witnesses have stated that they signed on the seizure list and labels as per asking of the police officer. Witness Haradhan Ghosh has stated that on reaching the spot they found that police force already apprehended three persons, therefore, we may presume that he has not witness the apprehension of the appellant Somnath Bhattacharjee personally. His evidence indicates that at the time of seizure 4/5 passengers were present at the platform but they were not called to witness the seizure. Witness constable Biswanath Maity has stated that some passengers were at the platform to avail the train and they were called but he cannot given their names. He personally called those persons. The evidence of Haradhan Ghosh and Biswanth Maity tussles regarding calling to passengers to witness the seizure. If we believe the evidence of constable Biswanath Maity then why the passengers who would have been independent witnesses were not asked to sign the seizure list and the labels of material exhibits. It is interesting to note that Inspector Sanjoy Kumar Tewari has stated that no public were present at the P.O. as it was late night. If we believe the evidence of Shri Tewari then the presence of independent witnesses Haradhan Ghosh and Bishu Das at the time of seizure become doubtful. It is interesting to note that Inspector Sanjoy Kumar Tewari has stated that no public were present at the P.O. as it was late night. If we believe the evidence of Shri Tewari then the presence of independent witnesses Haradhan Ghosh and Bishu Das at the time of seizure become doubtful. Shri Tewari has stated further that the seizure list was prepared at Santragachi Office but other witnesses has stated that it was prepared on the platform itself. The place of seizure becomes doubtful too. Sanjoy Bahadur Sanwar/P.W.9 is a RPF constable who has stated that he cannot recollect as to on which particular place search and seizure was made. He cannot say also whether any diary was lodged before leaving the police station for search and seizure. If all those aforenoted anomalies are taken into considerations then the only results comes out therefrom that the case of the prosecution has not been proved by substantive evidence. 11. BEFORE parting with, I think it judicious to express that there is huge tussle giving room of doubts in evidence of prosecution witnesses regarding identification of appellant, place of seizure, seizure itself, presence of independent witnesses, existence and recording of GD and labelling of Mat. Exhibit. The citations placed by Mr. Deb need not to be discussed at length as in my considered view the evidence on record is in doldrum condition and in mess. 12. THE judgment and conviction as well as sentence thereto passed by the learned Additional District and Sessions Judge, Fast Track 3rd Court, Howrah against the appellant Somnath Bhattacharjee under sections 399/ 402 of IPC stand set aside. The criminal appeal is, thus, allowed. Connected application, if any, stands disposed of. The appellant Somnath Bhattacharjee be set at liberty forthwith. Seized knife be destroyed in due course. 13. SEND down the lower Court record at once. Urgent photostat certified copy of this order, if applied for, be supplied to the parties. Criminal appeal allowed.