1 IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present: The Hon’ble Justice Ananya Bandyopadhyay G.A. 25 of 1986 The State of West Bengal -Vs- Chandan Singh & Ors. For the State : Ms. Faria Hossain Ms. Atulya Sinha For the Respondents No.1 to 3 : Mr. Amartya Ghosh (Amicus Curiae) For the Respondents No.4 : Mr. Partha Sarathi Das Heard on : 05.04.2024, 21.06.2024 Judgment on : 08.05.2025 Ananya Bandyopadhyay, J.:- 1. This appeal is preferred against the judgment and order of acquittal dated 09.08.86 passed by the Learned Judge, 4th Additional Sessions Judge, Burdwan, in Sessions Trial No.52 of 1986 (Sessions Case No.174 of 1982) under Sections 148, 307/149 of the Indian Penal Code and under Sections 25(B)(a)/27 read with Section 35 of the Arms Act. 2. The prosecution case precisely stated on 18.03.80 at about 02:05 p.m., Inspector Gangadhar Banerjee received telephone information to the effect that there was firing at Jailkhana more on B.B. Road and requested for 2 immediate police deployment. The Inspector after entering the information in the G.D., arrived at P.O. with his force by a police vehicle. They saw an assembly of several persons from whom they came to know that armed dacoity had taken place in Chalgadi. They also came to know that the dacoity had come in a matador van. Being informed about the movement of the matador van the police party immediately drove in that direction and when they reached Saktigarh level crossing they saw matador van standing at the level crossing where the gate was closed. As soon as the police party reached there eight persons from the matador van came out and on being challenged by the police party they fired at them and rushed towards them with open bhojali. The police party in a self defence fired several rounds and as a result two persons received injuries. The police party managed to arrest eight persons and from their possession cash, ornaments etc., were seized. Police also seized a revolver (country made), two bhojalis and cartridges. 3. On the basis of the aforesaid complaint, the Police initiated the case against the respondents and proceeded with the investigation of the case. 4. Charges were framed against the respondent to which they pleaded not guilty and claimed to be tried. 5. In order to prove its case, the prosecution examined as many as 19 witnesses and exhibited certain documents. 6. Considered the rival submissions of the Learned Advocate representing the State/appellant as well as the Learned Amicus Curiae. 3 7. The order dated 09.08.86 passed by the Learned 4th Additional Sessions Judge, Burdwan inter alia stated as follows:- “Now, the crucial question that falls for consideration is whether the accused persons along with others had formed an unlawful assembly at Atagarh-Saktigarh Railway Level Crossing with a common object to commit murder of the police officer and whether in pursuance to that they committed any act. At the outset it must be borne in mind that according to the prosecution the accused persons were dacoits and they had shortly before the alleged incident at the place mentioned in the charge had committed dacoity. They were fleeing away after committing dacoity. Now, the evidence of PWs 1 and 2 is that the eight miscreants including the accused facing trial jumped out of the Matador van and fired at them and rushed with bhojali in their hands. From the seizure list (Exbt.-1) we get that only one revolver and two bhojalis were recovered. From the evidence of PW-1 we get that the police party consisted of himself, PW-2, three constables and N.V.F., and they were all armed. From the evidence of the I.O., we get that he seized two revolvers, one rifle from the possession of the police. From the evidence of PW-1 it seems that the police party and the dacoits were almost equal in number. It seems highly improbable that the miscreants having in their possession only a country made revolver and two bhojalis would dare to rush with a view to killing police personnel armed with revolver and rifle. I have already stated above that the miscreants according to the prosecution were dacoits and they were 4 alleged to be in possession in booties. Is it believable that in the face of so many police personnel heavily armed the miscreants would instead of trying to flee away rush to assault the police party almost equal in number to their. In the circumstance the probable and natural conduct of the miscreants would have been to escape by running away. If the evidence of PWs 1 and 2 had been that seeing the police party the miscreants charged bomb at them it would have been a believable story. Bursting of bomb would have created a veil of smoke and under the cover of smoke the miscreants could have escaped or tried to escape. Evidence of PW-9 was referred by the Ld. A.P.P. He had stated that he saw the exchange of fire between the police and the miscreants. He does not state that he saw the miscreants to fire first and to rush towards the police party with open bhojali and thereafter the police party fired at the miscreants as stated by PWs 1 and 2. Might be that firing of shots from the gun of the miscreants was after the police had fired. But that would not make the accused persons liable for the offence either u/s 148 or u/s 307/149 I.P.C. The story tried to be made out by the prosecution through PWs 1 and 2 is highly improbable and unnatural in the facts and circumstances of the case. For that reason I hold that the prosecution story appears to be doubtful and the accused are entitled to the benefit of that doubt. Hence, I hold that the prosecution has failed to prove the charge u/s 148 and u/s 307/149 of I.P.C., against the accused.” 5 8. PW-1 deposed to have forgotten from whom “the bhojali and revolver were recovered”. He further deposed in his cross-examination that the person in whose Chalgadi the dacoity took place, any employee thereof or any other person who could identify the dacoits were not picked up by them while chasing the dacoits. He could not state as to how many level crossings they had to cross before reaching Saktigarh label crossing. At Atagarh there was a bifurcation of the road, one road lead to Kalna and another to Saktigarh. They were following the persons involved in a dacoity case. The accused of the dacoity case and the accused of that case were identical. He did not know the result of the dacoity case in the High Court. In both the bhojalies he did not find any special mark of identification. Bhojali could be found in the market. He found torn label pasted on the revolver. He could not state if such bhojali and revolver could be found in great number in the thana Malkhana. Their vehicle stood about 10 yards behind the Matador van of the dacoits. Seeing the Matador Van they thought that might belong to the miscreants. He did not remember if any passersby was found along the road or the place near the level crossing where the vehicles were standing. There were shops to the north of the level crossing about 100 cubits away from the level crossing. Normally people walk down along the road leading to the level crossing. When PW-1 challenged the miscreants, his subordinate officers were with him. 9. PW-2 in his cross-examination stated they did not take any person from the place where the dacoity took place, who could identify the dacoits. Seeing the Matador Van standing at the level crossing they suspected that the dacoits 6 might be in that van. They did not surround the van. They did not fire at the miscreants on their alighting from their vehicle. They fired at them after they were fired upon and attacked by bhojali. None of them received gunshot injury. They did not also receive any bhojali injury. They did not receive gunshot injury or bhojali injury and still they fired at them. Subsequently one of the miscreants died of gunshot injury. He succumbed to the injury by gunshot fired by them. Another person was injured by gunshot. Certain others received injury in the course of scuffling. In order to save themselves from the injuries suffered by the miscreants, the case was instituted. They fired at the miscreants as they attacked them. No case was filed due to the death of a miscreant. Certain people were going along the road when the incident was taking place. Nine or ten rounds were fired from their gun. More or less the miscreants were standing near to one another when miscreants fired at them. They aimed at the miscreants and fired at them. He personally arrested one accused but could not state exactly from which place he arrested him. 10. PW-3 reiterated the deposition of PW-1, PW-2, PW-4, PW-5, PW-6, PW-7, PW- 8, PW-9, PW-10, PW-14, PW-15, PW-17, PW-18, PW-19 were tendered by the prosecution and the same was declined by the defence. 11. There are inconsistencies and contradictions in the evidence adduced by the aforesaid prosecution witnesses. On the contrary one of the miscreants expired in the alleged incident. This Court is aligned with the observation of the Learned Trial Court in its entirety and is not inclined to interfere with the impugned order and judgment. 7 12. In view of the above discussions, the instant Government Appeal being GA 25 of 1986 stands dismissed. 13. There is no order as to costs. 14. I record my appreciation for the able assistance rendered by the Learned Advocate, Mr. Amartya Ghosh as Amicus Curiae in disposing of this appeal. 15. Trial Court records along with a copy of this judgment be sent down at once to the Learned Trial Court for necessary action. 16. Photostat certified copy of this order, if applied for, be given to the parties on priority basis on compliance of all formalities. (Ananya Bandyopadhyay, J.)