Calcutta High Court (Appellete Side)
Balaram Ghosh vs State Of West Bengal on 16 May, 2013
Author: Dipak Saha Ray
Bench: Dipak Saha Ray
In the High Court at Calcutta (Criminal Appellate Jurisdiction) Appellate Side CRA No. 360 of 2003 Balaram Ghosh vs. State of West Bengal Present : The Hon'ble Mr. Justice Dipak Saha Ray For the Appellant : Mr. Navanil De For the State : Mr. Tanmoy Chowdhury Heard on : 02.04.2013 C.A.V. on : 02.04.2013 Judgment delivered on : 16.05.2013 Dipak Saha Ray, J.: This appeal is directed against the Judgment and Order of conviction and sentence passed by the learned Additional Sessions Judge, 1st Court, Murshidabad in connection with Sessions Trial Case No. 1 of October, 2001 (Sessions Case No. 417 of 2001) arising out of Nowda P.S Case No. 51 of 2001 dated 13.06.2001 under Section 25/27 of the Arms Act. The Prosecution case, briefly stated, is as follows:
The case of the prosecution originates from the written complaint filed by Sirish Chandra Das, Sub-Inspector of Nowda Police Station, Murshidabad. In the said written complaint, it was alleged, inter alia, that on 13.06.2001 at about 19:15 hours he along with Assistant Sub-Inspector Nemai Banerjee, Constable No. 1610, Santosh Biswas and Home Guard Sadar Ali conducted raid in the house of Balaram Ghosh who was wanted in connection with Nowda P.S. Case No. 18 of 2001 dated 18.02.2001 under Section 302/120B/34 of the Indian Penal Code. During such raid, the accused Balaram Ghosh tried to flee away from his house; but the Police personnel were able to apprehend him. As no person was willing to stand as witness, the accused was searched in presence of the constable Santosh Biswas and Home guard Sadar Ali. During search one 12 bore improvised pipe gun measuring about 15 inches and one 12 bore live cartridge were recovered from the possession of the said accused.
On the basis of the said written complaint, Nowda P.S Case No. 15 of 2001 was started. Police investigated the case and after completion of investigation submitted charge-sheet against accused Balaram Ghosh under Section 25/27 of the Arms Act.
On the basis of the aforesaid allegations and other relevant materials, charges under Section 25/27 of the Arms Act had been framed against the accused/appellant herein. He, however, pleaded not guilt to the said charges and claimed to be tried when the said charges were read over and explained to him. As against this, the defance case as it appears from the trend of cross- examination and the statements made during examination of the accused person under Section 313 of the Code of Criminal Procedure, was the denial of the prosecution allegations and the plea of innocence.
In order to discharge the burden of establishing the guilt of the accused person, prosecution examined 4 witnesses.
After taking into consideration of all relevant facts and circumstances and the evidence on record, the learned Trial Court found the accused person guilty for the offence punishable under Section 25 of the Arms Act and was convicted him accordingly.
Being aggrieved by and dissatisfied with the impugned Judgment and Order of conviction and sentence, the convict as appellant has preferred the instant appeal.
Now, on perusal of the materials on record of the case it appears that all the witnesses of this case are the Police personnel. No independent witness has been examined in this case. It further appears from the records that the Investigating Officer of this case is also one of the members of the raid party. Exhibit-2 written complaint goes to show that at the time of seizure the de- facto complaint (P.W-3) requested persons to stand as witness to the seizure but none was willing for the same.
In this case P.W-1 Santosh Biswas, Constable of Police and P.W-2 Sardar Ali (Home Guard) during their evidence-in-chief have corroborated the prosecution case stating that one pipe gun and a cartridge were recovered from the accused person during the raid. They have also proved the seizure list and identified the pipe gun and cartridge (Material Exhibit-I collectively). The cross-examination of P.W.-1 further goes to show that at the time of seizure no outsider was present at the spot and he did not notice P.W-3 to request any person to stand as witness of the seizure. P.W-2 in his cross-examination has stated that at the time of raid some village people were roaming around the house of the accused and that P.W-3 did not call any of the said outsiders at the time of recovery of the pipe gun. This P.W-2 has specifically stated that 'Bara Babu' did not make any attempt to call any person inside the house of the accused to stand as witness to the said recovery of the alleged pipe gun. The evidence of P.W-2 also goes to show that there were many houses near the house of the accused person. Prosecution examined 4 witnesses. All the said witnesses are police personnel and they all were the members of the raid party. P.W-3 Sri Sirish Chandra Das who is the de-facto complainant, is the Sub-Inspector of Police; P.W-4 Sri Nemai Banerjee is the Assistant Sub-Inspector of police. He is also the Investigating Officer of the case. P.W-1 Sri Santosh Biswas is the constable of Police and P.W-
2 Sri Sadar Ali is the Home Guard of Nowda P.S. The evidence of P.W-3 and the records of the case go to show that P.W.4 took active part in the said raid and recovery. He also wrote/prepared the seizure list. From the evidence of P.W-3 it is also evident that at the relevant point of time 3 Assistant Sub-Inspectors including P.W-4 were posted at Nowda P.S; but no explanation is forthcoming from the side of the prosecution as to why the very police officer (P.W-4) who took active part in the alleged raid and recovery, was entrusted to conduct the investigation. Nor has any reason been given as to why an Assistant Sub-Inspector was entrusted to hold investigation of the case. So, it appears that the investigation made by P.W-4 who is the interested party of the case, was not just and proper.
According to the prosecution one 12 bore improvised pipe gun and one 12 bore live cartridge were recovered from the possession of the accused/appellant herein. The said fact has also been incorporated in the written complaint (Exhibit-3) as well as in the seizure list (Exhibit-1/3) signed by P.W-3, (the maker of the FIR). But it is surprising to note that this witness (P.W-3) in his evidence before the Court has disclosed that a pipe gun was recovered from the possession of the accused. Neither in his examination-in-chief nor during cross- examination, he had ever stated that one cartridge was also recovered from the possession of the accused during such raid. This contradiction between the contents of FIR & seizure list and the evidence of P.W-3 (FIR and seizure list maker) is a major contradiction and such contradiction in the evidence of a vital witness cast a cloud of doubt about the genuineness of the story of recovery of pipe gun and cartridge from the possession of the accused/appellant herein. It is the prosecution case that on 13.06.2001 Sri. Sirish Chandra Das along with other police personal went to the house of the accused/appellant herein to apprehend him in connection with one murder case being Nowda P.S Case No. 18 of 2001 dated 18.02.2001 under Section 302/120B/34 of the Indian Penal Code. But it is curious to note that except oral evidence nothing has been forthcoming to establish that the said police personal went to the house of the accused to arrest him in connection with the said murder case. Only oral evidence of P.W-3 is not believable as no record has been produced to show that they had conducted raid in order to arrest the accused in connection with any murder case.
From the evidence of the witnesses, it is evident that no public witness was associated at the time of search of the accused even though many persons were roaming around the house of the accused at the time when the recovery was being affected.
The evidence of P.W-2 also goes to show that many houses were situated near the house of accused Balaram Ghosh. It is thus evident that public witnesses were also available and none of the public was associated to witness the recovery. It would have been a different matter altogether had there been no public witness available or none was willing to be associated with the search and seizure. In the written complaint the de-facto complainant has mentioned that he called the persons present there to stand as witness to the seizure but none was willing due to fear of the accused person. But from the evidence of P.W-1 and 2 which has already been discussed, it appears that no such attempt was made by P.W-3. So, it appears that the prosecution has failed to establish that none of the person present at the spot was willing to associate the recovery. So, it appears that public witnesses were available at the time of raid and recovery; but none of them was made a witness to the alleged seizure. In such circumstances it would be unsafe to maintain the conviction of the appellant for the offence alleged.
Considering the above facts and circumstances and the discussions made hereinbefore, it appears that the prosecution has failed to establish the guilt of the accused person under Section 25 of the Arms Act beyond all reasonable doubt and to the satisfaction of the judicial conscience of the court. So, the impugned judgment and order of conviction and sentence, which has been sought to be assailed call for and deserve, interference. So, the criminal appeal succeeds.
The criminal appeal is, accordingly, allowed on contest. The judgment and order of conviction and sentence passed by the learned court below are hereby set aside. The appellant/convict namely Balaram Ghosh is found not guilty for the offence punishable under Section 25 of the Arms Act. He is acquitted accordingly. He be set at liberty and be released from his bail bond forthwith. If not already released.
Let a copy of this judgment alongwith the LCR be sent to the learned court below at once.
Upon appropriate Application(s) being made, urgent Photostat Certified copy of this Judgment, be given/issued expeditiously subject to usual terms and conditions.
(Dipak Saha Ray, J.)