Present: Sri H. Singh, Additional District & Sessions Judge.

Dated, Asansol, the 26th day of July, 2002.

State vs. Swapan Bag and 2 others.

Sessions Case No.136 of 2001.

Sessions Trial No.6 of 2001.

under Sections 399/402 I.P.C. & 24(a)/27 Arms Act.


The complainant Shri Janinal Ali Sha the then O.C. Andal GRPS on 12.08.91 at 5.15 hours lodged an F.I.R. at the Andal GRPS ub resoect if ab incident of the same date that took place at about 03.14 hours, at Waria Rly. Station in platform No.1 +2, under Andal GRPS District: Burdwan. The complainant produced 8 (eight) accused persons arrested by him at the P.S. as named in the F.I.R. i.e., 1) Swapan Bag, 2) Md. Mostafa, 3) Md. Alamgir, 4) Ashit Adhikari, 5) Md. Yunus, 6) Saukat Ali, 7) Md. Rashid and 8) Shyamlal Sett and while lodging the F.I.R. , he alleged that on 12.08.91 at about 2 hours he received a secret information from his source that criminals would assemble at Waria Rly. Station that night to commit dacoity in train No.319 UP Howrah-Mokamma Passenger. On receipt of this information, the complainant made a G.D. Entry No.341 dt. 12.08.91 about the information and informed S.I. A.K. Roy of Durgapur GRPS and also IPF Durgapur Post Shri P.G. Ghosh over telephone for taking action. At about 2.15 hours, the complainant along with force and R.P.F./C.I.B./ Inspector Sri S.B. Mishra of Andal R.P.F. Post proceeded to Waria by Govt. Vehicle. At about 3.00 A.M. the complainant along with the force reached Waria Rly. Station and in the meantime S.I. A.K. Roy along with his force and I.P.F. Durgapur with his force arrived at Waria Rly. Station. The complainant party ambushed behind bush at Waria Rly. Station from where they could keep watch on Platform No.1 + 2 of Waria Railway Station. The train was scheduled to arrive from Howrah and after keeping watch for a while, the complainant found that those persons were making certain preparations for certain operation. In order to commit crime, they divided themselves into two groups and one of them made over certain things in a bag to one person who was wearing white Kurta-Panjabi and whose right hand was cut off. When the train was about to reach the platform, the complainant along with force surrounded them and could round them up without any resistance, though one of them could manage to escape. After picking, he examined all the 8 (eight) accused persons who disclosed their names as mentioned in F.I.R. and recovered from their possession one country-made Revolver with one .303 live cartridge loaded in its chamber from the possession of accused Swapan Bag, one spring knife of size 12” from the possession of accused Md. Alamgir, one knife from the possession of accused Asit Kumar Adhikary, one brass spring knife of 13” from the possession of Md. Yunus, one brass knife of 13” from the possession of accused Saukat Ali. The complainant further stated that the accused persons previously posed as passengers but when asked to produce tickets, they failed to produce any tickets. But later on they admitted that they had assembled there to commit dacoity in Train No.319 UP Howrah-Mokama Passenger in 2nd Class Bogey No. ER-8146 fourth from the engine and made preparations to do so. The accused Swapan Bag could not produce any valid licence or valid document in support of the country made revolver which was recovered from his possession. The case was investigated by S.I. GRPS Asansol Shri R.P. Bera. After investigation, the Police submitted a Chargesheet No.18 dated 23.9.92 u/Secs.399/402 I.P.C. and 25(a)/27 Arms Act against the 8 (eight) F.I.R. named accused persons. The case was committed to the Court of Sessions by Judicial Magistrate, 2nd Court, Asansol, P.C. Karamkar on 6.5.2001 and after transfer of the case to this Court a Charge u/Secs. 399/402 I.P.C. and an additional charge u/Sec.25 of the Arms Act was framed against the accused persons who pleaded not guilty to the charge and claimed to be tried. The accused persons neither filed any Written Statement as envisaged u/Sec. 233 of the Cr.P.C. nor adduced any evidence in their defence.



Points Nos. 1 to 4 :- All these three points are taken up together for adjudication for the sake of convenience, continuity and brevity in discussions. The prosecution has examined 6 witnesses and proved 4 documents in support of their case. P.W.2 ( Jaynal Saha ) is the complainant and one of the key witness of this case. He in his evidence as P.W.2 stated, “Now I am O/C Burdwan GRPS. On 12-08-91 at about 2 A.M. in the night from source information I learnt that a few people had assembled at Waria Station to commit dacoity. Then I recorded G.D.E. Waria T.O.P. Is under Durgapur I/C. Then I informed I/C over telephone requesting him to come with force to Waria Station. I also sent a similar message to RPF Inspector. Then I asked R.P.F. Of Andal to accompany us. Then I alongwith force went to Waria and at about 3.00 A.M. we reached Waria. By this time Durgapur I/Charge and R.P.F. too arrived at Waria Station. Then on watching we found towards Delhi end of the Station , 8 to 9 people had assembled there. In the meantime, the arrival time of Howrah-Mokamah Express was announced. Then those sitting there got divided into two parties. One of them wearing a Punjabi of white colour and one of his hand was amputated, it may be the right hand, but, I am not sure now. He had a bag of cloth which he handed over to some other persons. Then we gheraoed the group and could arrest 8 (eight) of them. One of them with a jhola on his shoulder possessed a pipe-gun of one shot loaded with .303 cartridge. All other accused persons were in possession of knives. Then after search, I seized the alamats under S.L. And obtained signatures of witnesses. The accused persons also put their L.T.Is. On the S.L. This is the S.L. prepared by me and signed by me (Marked Ext.1 on identification). I also arrested the eight accused persons. One accused managed to flee away.” The aforesaid evidence of P.W.-2, if we ignore minor minor discrepancy regarding handing over of jhola, is very vital in the sense that it gives a complete picture from the stage of receipt of information by the said O.C. and how he organized the help of other police officers and R.P.F. Force etc. succeeded in apprehending the criminals before they could succeed in executing their plan to commit dacoity. P.W.-2, we find supported the F.I.R. case in all material particulars. No part of the evidence of P.W.-2 could be demolished by the defence in their cross-examination. From the evidence of P.W.-2 as well as the F.I.R., we find that he informed I.C. Waria T.O.P. which is under Durgapur I.C. as well as R.P.F. Inspector. P..W.-4 (Panchy Gopal Ganguli) at that time was posted at the R.P.F. Post at Durgapur as Inspector. He in his evidence fully corroborated, P.W.-2 (Jainal Saha) regarding receipt of message over telephone by him from the O.C. GRPS Andal. P.W.-4 (Panchu Gopal Ganguli ) stated, “On receipt of information, I along with S.I. GRPS Durgapur A.K. Das and Staff of R.P.F. And GRPS Durgapur with a pvt. vehicle arrived at Waria Station at about 0.3 A.M. where O/C GRPS Andal with Staff had already arrived. As per his instruction, myself and others laid an ambush surrounding the Station Platform area. At about 03.14 hours, just before arrival of Howrah-Mokamah Passenger at Waria Station, we noticed from distance that 8 to 9 persons assembled towards Delhi end of Platform No.1 & 2, one of them who was found with one hand cut was handing something in a bag to another person. Immediately we surrounded them on the platform and succeeded to arrest eight of them and one managed to escape. O/C GRPS Andal interrogated them, verbally and also searched them. One of the accused was found with loaded pipe-gun and others were equipped with one knife each. O/C GRPS Andal, seized the materials from them after preparing a S.L. in my presence and I signed the S.L. as a witness.”

From the aforesaid evidence of P.W.-4 we find that he too corroborated the evidence of P.W. (Jainal Saha) In all material particulars. He also identified one of the accused persons Swapan Bag who has an amputated arm, in Court. He was also able to identify the other two accused persons by face as well. If we go through the cross-examination of this witness, we again find that no portion of his evidence could be demolished during his cross-examination. P.W.-5 (Sheobali Mishra) who has now retired from service, at the time of incident was posted as Inspector C.I.B. Andal. He too in his evidence fully corroborated the evidence of P.W.-2 as well as other prosecution witnesses regarding the incident. His evidence again could not be demolished by the defence in their cross-examination. P.W.-1 (Amal Kanti Roy) who at the time of incident was posted as In-Charge Durgapur GRPS, in his evidence regarding the incident stated, “On that date O/C Andal GRPS, Jainal Ali Saha, informed me over telephone to come to Waria Station. Then I went to Waria Station. He came there on Jeep and I met him at Waria Stn. Platform. Then we started moving on the station. There is a small garden on the platform of Waria Station. We found 7 to 8 people sitting there in suspicious condition. We then surrounded them. At that time 319 UP Howrah-Mokammah passenger was to come and they had assembled there to commit dacoity in the said train. Then the O/C started searching them. On search we recovered one revolver loaded with bullet, knife with spring action etc. Then the said alamats were seized by the O/C Andal P,S, and the accused persons alongwith alamats were brought to Andal P.S.” His evidence was not even challenged by the defence in their cross-examination. Therefore, we find that in this case, the direct evidence of witnesses that comes from different sources to wit witnesses from Police, GRPS and Railway Protection Force etc. while these witnesses who were posted at different places and were holding separate responsible offices, not only fully corroborated the prosecution case and the evidence of the complainant in all material particulars, but the same also inspires confidence as the sequence of events that unfolds before the Court appears probable, natural and convincing. I see no reason as to why the evidence of these responsible witnesses should not be accepted as because they give the convincing and clear picture of the incident that took place on 12.8.91 at Waria Station on Platform No.1 + 2. The Hon'ble Supreme Court in State of Assam vs. Muhim Barkataki and others 1987 Cri.L.J. 152= AIR 1987 SC 98 observed that the evidence of a Police Officer cannot be under estimated merely because he is a Police Officer. Hon'ble Supreme Court in State of Gujarat vs. Raghunath Vaman Rao Baxi AIR 1985 SC.1992=1985 Cri.L.J. 1357 observed, “...............Where the witness is found to be partly truthful or to spring from tainted source, the Court may take the precaution of seeking corroboration, adequate and reasonable to meet the demands of the situation, but a Court is not entitled to reject the evidence of a witness merely because they are Govt. servants, who otherwise, might have come to contact with investigating officers and who might have been requested to assist the investigating agencies. For that matter it would be wrong to reject the evidence of Police officers either on the mere ground that they are interested in the success of the prosecution. It is extremely unfair to a witness to reject his evidence by merely giving him a label.” It is true that seized alamats were not produced in the Court by the prosecution during the trial for the reasons best known to the prosecution. But I do not attach much importance to non-production of seized alamats in Court, as because not only direct evidence of a good number of witnesses regarding possession, recovery and seizure is available, but from Ext.4, it appears that the seized arms and ammunition were sent to the Arms Expert and his Report was also received as the sanctioning authority at page 2 of Ext.4 noted, “And whereas the S.I. Rampada Bera of Andal GRPS took up the investigation, forwarded the seized arms and ammunition for examination and opinion of the Arms expert. The report of the Arms Expert was received by the I.O. and he examined witnesses. Hon'ble Orissa High Court in Benudhar v. Raula @ Maheswar Sahu and another, 1991 Cri.L.J. 220 observed, “The mere non-production of the blood stained clothes of the injured and the weapon of offence, would not by itself be grounds for acquitting the accused of the charge of assault if evidence on record establishes that injury was in fact caused by the accused.” In this case also, the evidence regarding possession and than seizure of the arms and ammunition, knives etc. is established beyond reasonable doubts by adducing direct evidence. Hon'ble High Court in Santosh Kr. Sarkar vs. State, 1988 Cri.L.J. 1828 (Cal H.C.) where the evidence of prosecution witnesses was found to be reliable and the I.O. omitted to seize blood stained knife, blood stained earth etc. etc. when the accused was caused red-handed, observed that non-seizure of various items would only lead to lack of corroboration and the conviction would not be vitiated thereby. Hon'ble Supreme Court also in Pradumaninh Kalubha v. State of Gujarat, 1992 Cri.L.J. 1111 observed that seizure of weapon is not material where there is a direct evidence. It may be noted that the RPF officer and Police Officers, they belong to two different wings and not in anyway subordinate to each other and since there is not even any remote suggestion that any of the production witnesses were inimically disposed against any of the accused persons, I believe their direct evidence that inspires confidence cannot be discarded on any flimsy grounds.

As regards the identity of the three accused persons who faced the trial before this Court, it is worth noting that the accused persons were caught red-handed from the spot, their names and addresses were noted in the F.I.R. and they remained in police custody till their production in Court. There is no case that after being apprehended, any one of them escaped and such person was recaptured later on so that the doubt regarding their identity may arise in the mind of the Court. In Mahendra Singh vs. State of M.P., 1991 Cri.L.J. 1381 (All) it was held that no identification is needed particularly when the accused was arrested at the spot.

Ld. Advocate for the accused persons citing the Ruling of Hon'ble S.C. in Chaturi Yadav .v. State of Bihar, AIR 1929 S.C. 1412 Cri. L.J. 1090 submitted that a mere assembly of accused persons armed with weapons does not prove that they assembled there to commit dacoity as they might have assembled there to commit murder of some one which type of assembly is not punishable, until the crime is committed. In the aforesaid case the 8 (eitht) accused persons assembled near a school premises close to market at 1 p.m. and some of them were armed with guns, cartridges etc.etc. and some ran away. But the facts of this case are quite different from the facts of that case and as such it is useful to recall that conclusion based on facts which may appear to be similar, never constitute precedence, one additional or different fact can make a world of difference between the conclusions in two cases as opined by Hon'ble S.C. in Regional Manager v. Pawan Kumar, AIR 1976 SC 1966. In this case, the following facts based on evidence on record, go to show that the motive of the accused persons was to commit dacoity in the Howrah-Mokamah passenger and nothing else:-

The aforesaid points clearly suggests that the motive of the accused persons was clearly to commit dacoity and not any other offence like murder of any chosen person, in as much as for committing murder of any person, train would be the worst place as on account of increased number of passengers, there would be more chances of conviction, if arrested after murder, as there would be several eye witness to the crime of murder. If murder be the pure motive, criminals would prefer a lonely or secret place so that none could watch them committing the Crime of murder. Therefore, the Ruling as reported in AIR 1979 1412 cited by the defence, does not apply to the facts and circumstances of this case as there is a gulf of differences between the facts and circumstances of the two cases. Hon'ble S.C. in K.C. Dora v. G. Annmanaidu, AIR 1974 S.C. 1069 at page1083 observed, “Precedents should not be petrified nor judicial dicta divorced from the socio-economic mores of the age. Judges are not prophets and only interpret laws in the light of the contemporary ethos. To regard them otherwise is unscientific.

My thesis is that while applying the policy of statutory construction we should not forget the conditions and concepts which moved the judges whose rulings are cited, nor be obsessed by respect at the expense of reason.”

There are, of course some discrepancies in the evidence of prosecution witnesses, but I do not attach much importance to such discrepancies as none of these discrepancies cut at the root of the prosecution case. Hon'ble S.C. in State of Rajasthan v. Kalki, 1981 Cri.L.J. 1012=AIR 1981 S.C. 1390 observed, “In the deposition of witnesses there are always normal discrepancies due to normal errors of observation, normal errors of memory, due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not not normal, and not expected of a normal person.

Hon'ble Kerala H.C. in State of Kerala vs. Narayan Bhaskaran & others (Para 14) observed, “Criminal Law has a purpose to serve. The object is to suppress criminal enterprise, and punish the guilty. In this process, it must however, be ensured that reasonable doubts are given to the accused. This is a guideline, not a fetish. Sir Carlton Allen said:

“I dare say some sentimentalists would assent to the proposition that it is better that a thousand or even a million guilty persons should escape, than one innocent person should suffer........ If our ratio is extended indefinitely, there comes a point when the whole system of justice is broken down and society left in a State of chaos. Viscount Simon in Strrland v. Director of Public Prosecutions (1944) AC 315 pointed out that miscarriage of justice may arise from the acquittal of the guilty, no less than the conviction of the innocent. The function of the Court is not to look for reasons for acquittal. In State of U.P. v. Anil Singh, AIR 1988 S.C.1998 = 1989 Cri.L.J. 88 stated the Law (Para 15):

A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that aguilty man does not escape.........Both are public duties..........”

Ld. Advocate for the accused persons argued that since the I.O. was not examined, the defence was prejudiced and hence the accused persons can't be convicted. In my opinion, this argument can't be accepted in this case as the defence did not draw any attention of any of the production witnesses to any statement made by him to the I.O. u/Sec.161 of the Cr.P.C. Therefore, had th I.O. deposed, the accused persons sill could not take any contradiction on account of non compliance of the provisions of Sec.145 of the Evidence Act read with the proviso to Sec.162 of the Cr.P.C. This renders, the I.O. merely a formal witness, whose non-examination does not prejudice either the prosecution or the defence in this case. Hon'ble S.C. in Behari Prasad v. State of Bihar, AIR 1996 S.C. 2905 held that non-examination of the I.O. per se does not vitiate a Criminal trial as no universal straight jacket formula should be laid down that non examination of I.O. per se vitiates a Criminal trial.

However, since the report of the Arms Expert was not produced before this Court, I am not inclined to convict the accused Swapan Bag for the offence u/Sec.25(1)(a) of the Arms Act, 1959. Nevertheless, I am convinced, the prosecution have adduced sufficient materials before this Court to prove that the accused persons assembled at the platform of Waria Rly. Station on 12.8.91 for the purpose of committing dacoity and they made adequate preparations for committing such dacoity to wit getting assembled with arms, dividing themselves into two groups to enter the targeted compartment of the train and all of them were members of the gang of nine dacoits, who has assembled at a small Rly. Station, removed far away from their place of residence, to commit dacoity upon the helpless, unsuspecting passengers of the Hoqwrah-Mokamah train at dead hours of night when passengers of the train are expected to be sleepy and or drowsy and, therefore, most vulnerable to be overpowered and over awed. Therefore, I find that the prosecution has been able to establish the guilt of the 3 accused persons for the offences u/Secs.399/402 I.P.C. Accordingly, all the 4 points are decided in favour of the prosecution and against the accused persons. Hence, I find the 3 (three) accused persons guilty of having committed an offence u/Secs.399/402 I.P.C. and convict them accordingly. The accused person Swapan Bag is acquitted from the offence u/Sec.25(1)(a) of the Arms Act, 1959. The three accused persons are taken into custody. Fix 29-7-02 for examination of the three accused persons u/Sec.235(2) of the Cr.P.C. on the question of sentence. Their bail bonds now stands cancelled. Issue custody warrants at once.

( H. Singh)

Additional Sessions Judge,

Fast Track, 1st Court, Asansol.

29-7-2002 All the 3 accused persons are produced from Judicial Custody and they are examined u/Sec.235(2) of the Cr.P.C. on the question of sentence. The accused Asit Adhikari on being examined u/Sec.235(2) of the Cr.P.C. stated that he is innocent and submitted that he has an old mother, wife and his elder and younger brother lives separately and there is none to look after his old mother. The accused Md. Yunus on being examined u/Sec.235(2) Cr.P.C. stated that he is innocent and he has 4 children and one wife. He on being asked regarding sentence merely stated that his is innocent. The accused Swapan Bag on being examined u/Sec.235(2) of the Cr.P.C. stated that he is a handicapped person and that his son works as a tailor and sometimes they get work and sometimes they do not. He stated that his parents are dead and he prayed to be excused and he further stated that there is none else to look after his family he further stated that his daughter is of marriageable age and talk of her marriage is going on. Keeping in view the fact that the accused person are guilty of a most heinous crime, they in my opinion, are not entitled to the benefit of of the Probation of Offenders Act, 1960. The accused persons have been nabbed before they could commit the crime upon innocent passengers. Had they succeeded in executing their meticulously planned dacoity, several innocent and helpless passengers would have lost their valuables and might have in the process even got seriously injured and my be even a few of them possibly killed, depending upon the circumstances prevailing at the time of commission of dacoity. Keeping in view the fact that the accused persons have committed the offences with a great deal of calculation and planning and also because they constituted a gang of criminals who had assembled and made preparations to commit dacoity, in my opinion,they deserve no mercy. In my opinion, Criminal Offences which expose general innocent public to great risk of their life and property should be dealt with an iron hand so that the same should serve as sufficient deterrence for the other criminals. Therefore, I am opinion, that a punishment of Rigorous Imprisonment for 7 years with a fine of Rs.2,000/- to each one of the 2 accused persons, in default to suffer additional imprisonment for 4 months would suffice the ends of justice for the offences u/Sec.399 I.P.C. So far as the offence u/Sec.402 I.P.C. is concerned, in my opinion, a punishment of Rigorous Imprisonment for 5 years for the said offence and to pay a fine of Rs.1000/- in default to suffer additional simple imprisonment for 2 months would suffice the ends of justice. Hence, it is


that the 3 accused persons who were found guilty for the offences u/Secs.399/402 IPC on 27.07.2002 and convicted for the said offences are hereby sentenced to suffer Rigorous Imprisonment for 7 years each and to pay a fine of Rs.2,000/- each i.d. to suffer additional simple imprisonment for 4 months each for the offence u/Sec.399 I.P.C. and for the offence u/Sec.402 I.P.C. they are sentenced to suffer Rigorous Imprisonment for 2 months each. Both these sentences shall run concurrently. The period of their detention in Judicial Cusstody shall be set-off from the period of sentences imposed against them. The seized alamats, shall be confiscated to the state after expiry of the period of appeal. Let a certified copy of this Judgement be given free of cost to the accused persons at once. Request Copying Department accordingly.

( H. Singh)

Additional Sessions Judge,

Fast Track, 1st Court, Asansol.