A public servant who uses force in the due discharge of his duty, causing death, is not guilty of murder if he had no intention to kill or cause any ill-will against the deceased.

NISHITA MHATRE, J.

1. The appeal is directed against the decision of the Additional Sessions Judge, 2nd Fast Track Court, Hooghly in Sessions Trial No. 2 of 2006 dated 18th April, 2008. The appellant has been convicted for having committed an offence punishable under Section 302 of the IPC and has been sentenced to suffer imprisonment for life with a fine of Rs.10,000/- (Rupees ten thousand only); in default of payment of the fine the appellant has been directed to suffer two more years of rigorous imprisonment.

2. An FIR was registered on the basis of the complaint of Purnendu Samanta, the appellant herein, who was employed as a Constable with the West Bengal Police. His statement was recorded under Section 161 of the Cr. P.C. and was treated as the complaint in this case. He has stated that on 4th September, 2003 at about 0.30 a.m. he was engaged in the routine checking of two wheelers. He was on duty together with a local night guard and a home guard. While two of them were checking the two wheelers near Crown Gate on G.T. Road at Uttarpara, the appellant waited at Ballykhal at G.T. Road with his police motor cycle, to nab any motor cyclist who resisted or suspiciously tried to escape the first picket. He has further stated that about 0.45 a.m. the local night guard Swapan Sengupta informed him on his mobile phone that a yellow coloured Hero Honda Ambition motor cycle had escaped at a very high speed towards Ballykhal. The complainant then stood blocking G.T. Road in front of Ballykhal and he saw the motor cycle with two riders approaching. He could not see the number of the vehicle because it was dark. He shouted to the motor cyclist to stop and revealed his own identity with the torch light. According to the complainant, the motor cycle slowed down in front of him and somebody shot him in the leg. He slumped to the ground and the motor cyclists tried to escape. He fired one round from his service revolver to save his life and to resist the antisocial elements. Then he dragged himself to the footbridge by the side of the road and soon lost consciousness. When he regained his senses, he found himself in the police station and was admitted to hospital. His statement was recorded in the Uttarpara Hospital. On being interrogated by the police, a case was registered under Sections 341, 353, 326 and 307 of the IPC and Sections 25 and 27 of the Arms Act. This was registered as an FIR being No.127 of 2003.

3. It appears that instead of proceeding with this case, the police registered another FIR being Uttarpara Police Station case No.128 of 2003 dated 4th September, 2003 under Section 304 of the IPC. This FIR lost its significance for the police later at some point of time. The appellant was then arrested for having shot and killed the motor cycle rider.

4. On the basis of his own FIR the appellant was arrested for having murdered Sanjay Chakraborty, the motor cycle rider. After the appellant was discharged from the hospital on being treated for the bullet injury that he had received on his leg, he was tried for the aforesaid charge. He was found guilty and sentenced as aforesaid by the Trial Court.

5. The prosecution has examined 31 witnesses in order to ensure that the appellant was convicted. PW 1 is the person who was accompanying the appellant on duty and was engaged as a member of Citizen Rapid Volunteers Force. He has narrated his version of the incident. It corroborates the contents of the complaint. This witness has reiterated that he was posted along with another person at G.T. Road and had tried to stop the bike rider, who was riding a yellow bike and was approaching from Konnagar in a high speed. He has mentioned that they were one or two men on the bike. He has also stated that the bike rider did not stop on being asked by those on patrol and instead, he sped away at a high speed. This witness has stated that a little later another bike approached them from the same direction and stopped when signalled by the poli