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2014 DIGILAW 1041 (CAL)

Islamul Haque @ Aslam v. State of West Bengal

2014-11-10

JOYMALYA BAGCHI

body2014
JUDGMENT : Joymalya Bagchi, J. The appeal is directed against the judgment and order dated 30th September, 1988 passed by the learned Additional Session Judge, Asansol in Session Trial No. 7 of 1988 convicting the appellant for commission of offence punishable under Section 25(1)(a) of the Arms Act and sentencing him to suffer rigorous imprisonment for two years and to pay fine of Rs. 200/- only in default further rigorous imprisonment for one month more. 2. Prosecution case, as alleged, against the appellant is that on 05.04.1981 in the evening officer-in-charge of Kulti Police Station received intelligence about assembly of five or more persons in a dilapidated and abandoned hotel situated by the side of G.T. Road at Kultora with arms for committing dacoity and other heinous offences. On the basis of such information, officer-in-charge, Subhas Ganguly of Kulti Police Station along with force went to that place and surrounded the abandoned and dilapidated hotel. They found seven to eight persons assembled in a room in the said hotel. On being challenged those persons tried to escape but the raiding police party managed to catch hold of three of them. Upon search a five chambered country-made revolver loaded with two live cartridges of .32 bore were seized from one of the miscreants who gave his name as Aslam. The police party seized the firearm with cartridges alongwith other articles under a seizure list. The miscreants were arrested and brought to the police station. On the basis of written complaint of the officer-in-charge of the police station, Kulti P.S. Case No. 12 dated 05.04.1981 under Section 399/402 of the Indian Penal Code read with Sections 25(1)(a) and 27 of the Arms Act was registered against the appellant and five other persons. Upon conclusion of investigation, charge sheet was filed in the instant case against the appellant and two other persons viz. Chotka @ Md. Alam and Ram Naresh Singh. The case, being a sessions and triable one, was committed to the Court of Sessions, Burdwan and transferred to the Court of learned Additional Session Judge, Asansol for trial and disposal. Charges were framed under Section 399/402 of the Indian Penal Code against the appellant and other accused persons and under Section 25(1)(a) and 27 of the Arms Act against the appellant. The appellant and other accused persons pleaded not guilty and claimed to be tried. 3. Charges were framed under Section 399/402 of the Indian Penal Code against the appellant and other accused persons and under Section 25(1)(a) and 27 of the Arms Act against the appellant. The appellant and other accused persons pleaded not guilty and claimed to be tried. 3. In the course of trial prosecution examined as many as seven witnesses and exhibited a number of documents. The plea of defence was one of innocence and false implication. In conclusion of trial learned Trial Judge by judgement and order dated 30th September, 1988 convicted the appellant for commission of offence punishable under Section 25(1)(a) of the Arms Act and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 200/- only in default further rigorous imprisonment for one month more. By the self-same judgement and order learned Trial Judge acquitted the appellant and other accused persons of the charge under Section 399/402 of the Indian Penal Code and under Section 27 of the Arms Act so far as it relates to the appellant. 4. Mr. Dipanjan Dutta, learned Counsel appearing as amicus curiae, submits that the prosecution case has not been proved. The P.Ws. 1 and 2 was unable to identify the appellant as the person from whom the firearm was seized. P.W 3 also could not identify the person from whom the firearm was seized. Defacto complainant has not been examined in the instant case. Accordingly, it cannot be said that the firearm was seized from the possession of the appellant. 5. Mr. Banerjee, learned Additional Public Prosecutor, submits that seizure of the firearm has been proved through the evidence of P.Ws. 1, 2 and 3. He further submits that the opinion of the arms expert, P.W. 5, showed that the seized firearm was in working condition and ammunition's were live. He accordingly prays for dismissal of the appeal. 6. Having perused the evidence on record I find though the officer-in-charge of Kulti Police Station and the defacto complainant was not examined, prosecution relied on the evidence of P.Ws. 1, 2 and 3, members of the raiding party, to prove its case. P.W. 1, Sri S. P. Mukherjee, was S.I. of police who was attached to the Kulti Police Station at the material point of time. He claimed that he subsequently joined the officer-in-charge of the police station in the raid. 1, 2 and 3, members of the raiding party, to prove its case. P.W. 1, Sri S. P. Mukherjee, was S.I. of police who was attached to the Kulti Police Station at the material point of time. He claimed that he subsequently joined the officer-in-charge of the police station in the raid. He further stated that seven to eight persons were sitting by the side of the abandoned hotel room. They rounded them up and challenged them as to their identity. One of the persons disclosed his identity as Aslam, another person disclosed his identity as Samim. He could not remember the name of the third person. Officer-in-charge conducted search and recovered a country-made revolver from the waist of the person named Aslam. The revolver was loaded with two cartridges. The seizure list was prepared in respect of search and seizure. He proved this seizure list which was marked as exhibit-1. He proved his signature and that of the officer-in-charge on the seizure list. He stated that he will not be able to recognise the person who was arrested on that date from the place of occurrence. In cross-examination, he stated that after receiving R.T. message from officer-in-charge, Kulti Police Station he proceeded to go to the spot. P.W. 2, M. Huda, was an A.S.I. of police attached to the Kulti Police Station at the material point of time. He stated that on 05.04.1981, in the evening, officer-in-charge of Kulti Police Station got information that some persons gathered at a spot at Kultora by the side of G.T. Road for committing dacoity. Accordingly, he went out with the officer-in-charge and other officers to work out the information. They reached the place of occurrence i.e. a hotel near G.T. Road. P.W. 1 joined them at the spot. They found that seven to eight persons had gathered there. On being challenged the miscreants tried to flee away. Three of them were caught. One of the three miscreants gave out his name as Aslam. He could not remember the name of the other persons. He was unable to identify the appellant in Court. A country-made revolver with two cartridges of 32 bore was recovered from the possession of Aslam. The revolver with cartridges was seized alongwith other articles by the officer-in-charge. He proved his signature on the seizure list. There were local people who also put their signatures on the seizure list. He was unable to identify the appellant in Court. A country-made revolver with two cartridges of 32 bore was recovered from the possession of Aslam. The revolver with cartridges was seized alongwith other articles by the officer-in-charge. He proved his signature on the seizure list. There were local people who also put their signatures on the seizure list. P.W. 3, Arun Kumar Mazumder, was a constable attached to Kulti Police Station. He also accompanied in the course of raid. He identified the appellant and the accused persons as individuals who were caught at the place of occurrence. He, however, could not identify the appellant as the person from whom the firearm was recovered. P.W. 4, G. C. Pradhan, S.I. of police, attached to Kulti Police Station, is the investigating officer who took up investigation of the case on 3rd March, 1982 from S.I. Abi Abdhuliah. He obtained sanction from the District Magistrate and filed the charge-sheet. P.W. 5, R. K. Roychoudhury, was the arms expert who opined that the improvised firearm and the cartridges received by him were in working condition and live respectively. P.W. 6, Debdas Bhattacharjee, is an independent eye-witness of the seizure of the firearm and ammunition's and other articles. He, however, could not identify the persons from whom the articles were seized. He proved his signature on the seizure list. P.W. 7, Sri S. K. Banerjee, was an additional Judicial Peskar to the District Magistrate, Burdwan. He proved sanction order as exhibit-2. 7. As the defacto complainant of the case had not been examined prosecution was unable to prove the seizure of the firearm and the live cartridges from the possession of the appellant is sought to be proved by the evidence of P.Ws. 1, 2,3 & 6. P.Ws. 1 and 2, however, could not identify the appellant as the person from whom the seizure was effected. They stated that the seizure was effected from a person named Aslam. P.W. 3, also could not identify the appellant as the person from whom the seizure was effected. He merely identified the appellant as the person arrested at the spot. Similarly, P.W. 6, the independent witness, did not identify the appellant as the person from whom the firearm was seized. It is, however, not disputed that the name of the appellant is Aslam. He merely identified the appellant as the person arrested at the spot. Similarly, P.W. 6, the independent witness, did not identify the appellant as the person from whom the firearm was seized. It is, however, not disputed that the name of the appellant is Aslam. Relying on this it was argued that it was the appellant from whom the incriminating article was seized. I am unable to accept such contention as the prosecution witnesses were not sure as to whether it was the appellant from whom the firearm was seized. It may be true that P.Ws. 1 and 2 stated that the seizure was made from one Aslam but they were unable to identify the appellant as the said person. Similarly, P.Ws. 3 and 6 were also unable to identify the appellant as the person from whom firearm and ammunition's were seized. That apart, the leader of the raiding party viz. officer-in-charge of Kulti Police Station has not been examined in the instant case. Accordingly, it would be extremely unsafe to come to a conclusion that the appellant was in the possession of the seized firearm and ammunition's in the face of the fact that none of the prosecution witnesses was able to identify him as the individual from whom the seizure had been effected. 8. The first investigating officer has also not been examined. There is no evidence on record as to how and in what manner the alleged seized firearm was kept prior to its dispatch to the arms expert. No evidence is forthcoming as to the factum of dispatch the seized firearm to the arms expert. Accordingly, the live link between the seizure of the arms and the examination of such seized arms by the arms expert, P.W. 5, stands breach in the facts of the instant case. 9. For the aforesaid reasons, the appeal is allowed. 10. I am of the opinion that the appellant is entitled to an order of acquittal. The conviction and sentence imposed upon the appellant is set aside. 11. The appellant shall be discharged from his bail bond after expiry of six months from date in terms of Section 437A of the Code of Criminal Procedure. 12. Lower court records alongwith a copy of the judgement be sent down to the Trial Court forthwith. 13. I record my appreciation for the able assistance extended by Mr. 11. The appellant shall be discharged from his bail bond after expiry of six months from date in terms of Section 437A of the Code of Criminal Procedure. 12. Lower court records alongwith a copy of the judgement be sent down to the Trial Court forthwith. 13. I record my appreciation for the able assistance extended by Mr. Dipanjan Dutta, learned Counsel appearing as amicus curiae for disposal of the appeal. Appeal is allowed.