SOMNATH BHATTACHARJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(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. 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 25&27 Arms Act was started.

(3.) 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. 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 in (Chaturi Yadav and others v. State of Bihar, 1979 AIR(SC) 1412), (Ram Lakhan v. State of U.P, 1983 AIR(SC) 352), (Sk. Rezaul @ Dalai Rezaul v. State of West Bengali, 2008 1 CalCriLR 142 and [Shew Kumar Rai and Ors. v. State of West Bengal, 2002 CalCriLR 986] to substantiate his contention.