MADHUSUDAN SEN GUPTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This appeal is under Clause (a) of Sub-section (1) of Section 411-A of the Code of Criminal Procedure. The appellant was tried along with three persons, Sudhir Roy alias Sudhin, Chittaranjan Das alias Chitta and Kartick Chandra Das, on a charge under Section 399 of the Indian Penal Code and on two other charges, both under Section 19 (f) of the Indian Arms Act -- one of these being in respect of possession without licence of one sten gun and the other in respect of possession without licence of twenty-two cartridges. The jury returned a unanimous verdict of guilty against all the four persons on both the charges under Section 19 (f) of the Indian Arms Act. In respect of the charge under Section 399 of the Indian Penal Code, the jury were divided in the proportion of seven to two and the majority verdict was that all the accused persons were guilty of that offence. The learned Judge agreed with the majority verdict in respect of the offence under Section 399 of the Indian Penal Code and convicted the appellant and the other accused persons under Section 399 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for three years. The learned Judge also convicted the appellant and the other three persons of the offence under Section 19 (f) of the Indian Arms Act in respect of possession of the sten gun and also in respect of the possession of twenty-two cartridges without licence. He sentenced each of the accused to rigorous imprisonment for three years for the offence under Section 19 (f) of the Indian Arms Act in respect of the possession of the sten gun without licence. He passed no separate sentence for the offence under Section 19 (f) of the Indian Arms Act in respect of the possession of the cartridges. He further ordered that the two sentences would run concurrently.

(2.) Of the four convicted persons, only Madhusudan Sen Gupta has appealed. The prosecution case is that on the 30th March, 1955, six persons including Madhusudan Sen Gupta and the other three accused persons, who were tried with him boarded a taxi W B T 358 -- at the crossing of the Gariahata Road and Rashbehari Avenue and proceeded in that taxi towards Howrah side. In that taxi they carried with them one sten gun with magazine fully loaded with twenty-two cartridges, one bhojali, a hand-grenade, some torches, five more bombs and several other articles of gun. It is said that the sten gun and the cartridges had been packed up In cloth and paper, that the hand-grenade and the torches were Inside what is called a shoulder bag and the bhojali was also kept packed. The earthen pot which is said to have contained five bombs was also packed, the mouth of the pot being closed by paper, There was a fifth package containing some garments. The prosecution case is that the six persons had provided themselves with all these things with the intention of committing a dacoity somewhere near Howrah or further off and that they were proceeding in the taxi towards the place where they wanted to commit dacoity fully prepared for that purpose. Before, however, they could effect their purpose, the police stopped them. It is said that a police party had on receipt of previous information been waiting for the accused persons near the Junction of Gariahata Road and Rashbehari Avenue and as soon as the four accused persons and their two companions got into the taxi and the taxi left, the three police officers and some plain clothed constables followed the taxi in a private car. For a considerable distance the police party in their car kept behind the taxi in which the accused persons were travelling, but it is said that when the taxi reached the junction of Clive Ghat Road and Strand Road and was held up by traffic ahead and a tram car on the right side of the taxi, the private car in which the police were travelling shot ahead by the right of the tramway and reached the crossing of the Strand Bank Road and the Strand Road where two sergeants were found on duty. These sergeants were informed by Inspector Amiya Kumar Gupta who was travelling in the police car about the position and then all of them -- the sergeants and these police officers travelling in their police car --stopped the taxi with all the seven persons in it, namely, the six passengers and the driver, in front of 221/1, Strand Bank Road. All the six persons were according to the prosecution case then brought out of the car. Some of the police officers got inside the taxi and then discovered five packages lying in the taxi, three on the rear seat and two on the floor of the taxi in front of the rear seat. It is said that after these packages were opened, one of the three which were found on the rear seat was found to contain a sten gun in three parts and a magazine loaded with twenty-two cartridges, another -- a shoulder bag was found to contain one hand-grenade while the third package on the rear seat was found to contain a bhojali in scabbard. Of the two packages which were found on the floor it is said that one contained some articles of garment, namely, a full sleeved shirt and a torch while the other contained five country made bombs. Before, however, the six persons who were brought down could be arrested, two managed to escape. The remaining four 9s also the taxi and its driver and its contents were taken to the Thana nearby, where a search-list was prepared in the presence of search witnesses who had already been secured. On the basis of information that was lodged apparently by some of the police officers, a crime-sheet entry was made in the Barabazar Thana. On the above allegation of facts the prosecution said that the four accused persons together with two, who has escaped, and made preparations to commit dacolty and thus committed an offence under Section 399 of the Indian Penal Code and further that all of them were in Joint possession of the sten gun and the cartridges that were found in the taxi and as they had no licence for the possession of the same, they committed two other offences under Section 19 (f) of the Indian Arms Act.

(3.) The appellant and the other three accused who were tried with him all pleaded not guilty. The defence case, as far as can be ascertained from the suggestions made on behalf of the accused persons in the cross-examination of witnesses, is that at the time the taxi in which the accused persons were travelling was stooped by the police, there was no sten gun, ammunition or any of the other articles as alleged by the prosecution inside it and that these were planted by the police in the taxi after the taxi had been taken inside the Thana compound. It was also suggested by the defence that in all there were only four persons, namely, the four accused who were tried together, besides the driver of the taxi and the story that there were six was untrue. It was suggested in the alternative that if there were two more persons, they were police informers and they could escape as the police deliberately allowed them to escape.