JAHURUL JAMADAR Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This instant appeal has been filed under Sec. 374 (2) of the Code of Criminal Procedure against the judgement and order of conviction and sentence dated January 31, 2006 passed by the Learned Additional Session Judge, Fast Track, 3rd court, Diamond Harbour in Sessions Case NO.84(12) 2003, Sessions Trial number 2 (5) 2004/ S.T No.1(6) 2004/8(7) 2005, against the appellant under Sec. 25(1)(a) of the Arms Act, 1959, sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000 each in default to suffer simple imprisonment for one month.

(2.) The fact of the case in a nutshell is that the prosecution case was launched on the strength of a Suo Motu complaint, lodged by the Officer-in-Charge Diamond Harbour Police Station on March 6, 2002 alleging an attack on the police personnel who on secret information constituted a raiding team along with SI Abdul Rahman the officer in charge Usthi P.S with his force, namely ) C/1359(DAP) Kuddus Mondal C/2152. C/2152 DAP ,Ponchu Ray C/1055 Mohan Mondal C /2203 Sanjeev Banerjee all of Usthi PS, S.I Malay Kumar Mukherjee C/1345 D.A.P Krishna Padam Mandal C /1860 Jayanta Vakil DAD C/1867 Swapan Sardar DAP C/2049 Gopal Das D.A.P all posted at diamond harbour, PS and C/1259, Sunil Biswas C/1394 Amol Biswas C/1876 Tapas Dash C/521 Dhananjay Pal and C/1886 ,Samu Islam all at DAP camp at Dakshin Sherdah went to the house of Anwar Jamadar and arrested 5 miscreants namely , 1) Matal, Jamar @, Zakir HussainJamadar, son of Chhayrab Jamadar , 2 ) Rafiqul Shaikh @ Kulay son of Rahul Amin,3) Bablu Halder.@ Sk Sattar @ Lalua son of Sk. Abdul Qadir 4) Obaidulla Jamadar @ Balu, son of Lt. Najrul Jamadar ,5) Johurul Jamadar. They also recovered arms and ammunition from the arrested persons and while returning they were attacked by 50/60 persons being armed with deadly weapon at Dakshin Seardah who were the sympathiser of the arrested, dacoits tried to snatch those arrested persons from the hands of police and made a chaos. Despite giving warning, they paid no heed and began to open fire, aiming at police and also some of them where hurling bombs as a result, five policeman, including the complainant, O/C Usthi PS injured .The complainant ordered Ukil and Swapan both of DAD to fire one round each from their service rifle number 344 and 361 respectively. The complainant and OC. Usthi PS also opened fire of one round each for saving life of the force and also of the Public in general. The complainant further stated that after the mob retracted, on search one person from the mob found lying with severe injury and was shifted to Diamond Harbour Hospital by the villagers and police personnel where he was declared brought dead with the history of Bomb injury and was identified as Habib Jamdar. At the time of the arrest of the dacoits on February 5, 2002 between 1.45 and 14:30 hours the team also recovered one improvised shorter fire arms loaded with one empty cartridge of .303 bore and two live cartridges from the possession of Rafikul Sk @ Kulay ,6 Rounds of .12 Bore from Bablu Halder Lalula @ Sk Sattar ,6 Round.. ,12 live cartridges from Jahurul Jamadar and 5 live bombs from Obaidullah Jamader @ Babu .They also found some remnants of exploded bombs and two. 303 empty cartridges from the place of occurrence. On the basis of this complaint the Diamond Harbour PS case number 40 dtd. 6/3/2002, under Ss. 147/148/149/353/332/186/326/307IPC and 25/27 Arms act and 4/5 E.S Act started and on completion of investigation submitted the charge sheet against 29 accused persons out of which 22 persons faced the trial. The case against seven accused persons was filed as they absconded. The charges were framed by the court of Additional Session Judge, Fast track 3rd court Diamond Harbour, which was read over to the appellant to which the appellant and other accused pleaded not guilty and claimed to be tried. Accordingly, the trial commenced and the Learned court found the appellant guilty of offences under Sec. 25(1) (a) of Arms Act. Hence this Appeal.

(3.) The learned Defence counsel argued that in order to prove the case, the prosecution has cited as many as 27 witnesses out of such witnesses PW1, PW2, PW3, PW4, PW6, PW7, PW8, PW9, PW15, PW 16 and PW 18 did not support the prosecution case of all unlawful assembly, use of criminal force, voluntarily causing hurt to the life of police personnel, obstruction in discharging official duties of police personnel as public servant, hurls off bombs with intention and knowledge to cause the death of Habib Jamadar. The prosecution declared them as hostile and the cross examination of PW5, PW17, PW 19 and PW20 were declined by the defence counsel. The learned Defence Counsel argued that glaring inconsistence in the evidences adduced by the prosecution witnesses are evident.