IN THE HIGH COURT AT CALCUTTA CRIMINAL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Ananya Bandyopadhyay C.R.A. 169 of 2006 Sham Mohammad @ Samu Sk -Vs-

The State of West Bengal With CRA 239 of 2006 Riajuddin Sk -Vs-

The State of West Bengal For the Appellant : Mr. Ashraf Ali in CRA 169 of 2006 Mr. Indrajit Chatterjee Mr. Sankar Banerjee Mr. Rafikul Islam Sardar For the Appellant : Mr. Navanil De in CRA 239 of 2006 Ms. Monami Mukherjee For the State : Mr. Avishek Sinha Heard on : 19.12.2023, 22.02.2024, 20.06.2024, 15.01.2025 Judgment on : 14.05.2025 Ananya Bandyopadhyay, J.:-

1. These instant appeals are preferred against the judgment and order of conviction dated 22.02.2006 passed by the Learned Additional Sessions Judge, 1st Court, Murshidabad in Sessions Trial No. 9/July/2005 arising out of Sessions Case No. 302 of 2005 convicting the appellants under Section 25 of the Arms Act.

2. The prosecution case precisely stated that on 21.04.2004, PW-1/Sanjib Kumar Dey, Officer-in-Charge of Hariharpara Police Station had been to a place known as Lalnagar along with his officers named Prabin Kumar Sarkar, A.S.I. of Hariharharapara Police Station (PW-4), H.C. 470/Yunus Ali (PW-5), Constable 320/ Ataur Rahaman (PW-6) of Hariharpara Police Station. He had been to the place of occurrence along with his officers and staff to work out a telephonic information that some miscreants had assembled in that village Lalnagar to commit dacoity. Between 23.00 hrs. to 23.30 hrs., he along with his staff along with two villagers rushed to the spot which was situated by the side of Bhandardah “beel” which was abandoned and lonely place. There he found some miscreants talking to themselves at a low voice. Out of them, two could be apprehended. Their names were Samu @ Samsuddin Sk and Riajuddin Sk and the rest of the miscreants managed to flee. After arrest, search on the person of the accused Samu Sk was made. A musket type gun having length of about 42” loaded with one .303 ammunition was recovered whereas a 9” long pipe gun loaded with one .303 ammunition was recovered from the possession of accused Riajuddin. PW-1 seized those alamats under a proper seizure list in presence of Abdul Latif (PW-2) and Safikul Hasan (PW-3). He also pasted label on the seized alamats on the spot and thereafter came back to the police station and lodged a written complaint of the incident and initiated a case of an offence punishable under Section 25(1)(a) and 27 of the Arms Act against both the appellants and endorsed the case to S.I. Dulal Sarkar/ PW-8 for investigation.

3. On completion of the investigation, the charge-sheet against the appellant and Reajuddin Sk. for the offence under Section 25(1)(a) and 27 of the Arms Act and Sections 399/402 of the Indian Penal Code.

4. Charges were framed under Sections 25 and 27 of the Arms Act against the appellant Sham Mohammad @ Samu Sk and the said Reajuddin Sk. to which they pleaded not guilty and claimed to be tried.

5. During the trial, the prosecution examined as many as 8 witnesses and exhibited certain documents.

6. The Learned Advocate representing the appellant (Sham Mohammad)

submitted as follows:-

i. The appellant of the appeal, Sham Mohammad, had submitted that according to the prosecution witnesses—PWs 1, 4, 5, and 6—all members of the police raiding party, there had been no light in the area at the relevant time. The place of occurrence, Bhandar Daha Beel, had been described as an abandoned and lonely area. Except for PW-5, none of the other members of the raiding party had explained how seizures had been conducted under such darkness. PW-5 alone had stated in cross-examination that the operations had been conducted with the help of a torchlight. This assertion, the appellant submitted, had remained uncorroborated by the other witnesses. Furthermore, the prosecution had failed to seize or produce the torch allegedly used during the raid, thereby casting serious doubt on whether any such operation