Calcutta High Court (Appellete Side)
Anil Bag & Anr vs The State Of West Bengal on 22 May, 2026
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IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Ananya Bandyopadhyay
C.R.A. 120 of 1996
Anil Bag & Anr.
-Vs-
The State of West Bengal
For the Appellants : Mr. Kallol Kumar Basu
Mr. Jannat-ul-Firdous
Mr. Rajesh Naskar
For the State : Mr. Avishek Sinha
Judgment on : 22.05.2026
Ananya Bandyopadhyay, J.:-
1.
This appeal is preferred against judgment and order of conviction dated
27.03.1996 and 29.03.1996 passed by the Learned Additional District and
Sessions Judge, 4th Court, Alipore, South 24-Parganas in Sessions Trial
No.1(3)93 arising out of Sessions Case No.9(1)92 convicting the appellants
for the offence punishable under Section 399 of the Indian Penal Code and
sentencing them to suffer rigorous imprisonment for four years and to pay a
fine of Rs.600/- each, in default, to suffer rigorous imprisonment for three
months each and further convicting the appellants for the offence under
Section 402 of the Indian Penal Code and sentencing them to suffer rigorous
imprisonment for two years and six months and to pay a fine of Rs.400/-
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each, in default, to suffer rigorous imprisonment for two months each and
both the sentence would run concurrently.
2. The prosecution case, originating from a formal complaint lodged by Sub-
Inspector of Police Jayanta Mukherjee, unfolds with the receipt of secret
information on January 15, 1981, at about 00:05 hours, indicating that a
gang of ten to twelve dacoits had assembled in a lonely paddy field at
Gangarampur near the panbaraj of Sanatan Karati, heavily armed with pipe-
guns and bombs in anticipation of committing dacoity. Acting swiftly on this
intelligence, the informant, alongside S.I. R.N. Kundu, S.I. A.K. Banerjee,
Constable 5125 Santi Dey, Constable 5948 Chittaranjan Ghose, Constable
1768 Jiban Bhattacharya, Home Guard Haripada Pal, and Tulsi Pal, rushed
to the spot accompanied by local witnesses. Upon flashing their torch-lights,
the raiding party challenged the miscreants, who immediately attempted to
flee; however, four dacoits were apprehended red-handed at the scene while
the others managed to escape. A subsequent body search conducted in the
presence of witnesses yielded a pipe-gun loaded with a .303 live cartridge
from the possession of accused Alauddin Sk., four live bombs inside a side-
bag from Giasuddin Sk., a big knife from Paresh Mondal, and an iron rod
from Anil Bag. Furthermore, a search of the immediate place of occurrence
where the dacoits were found sitting resulted in the seizure of one big sword
with a cover, three big lathis, a bladder containing I.D. liquor alongside six
glasses smelling of the same, and sixteen burnt bidis, all of which were duly
inventory-linked through a contemporaneous seizure list signed by both the
witnesses and the apprehended accused persons.
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3. On the basis of the above complaint, Bishnupur P.S. Case No.14 dated
15.01.1981 under Sections 399/402 of the Indian Penal Code and Sections
25/27 of the Arms Act was initiated against the appellants.
4. On completion of investigation, police submitted charge-sheet against seven
accused persons including the present appellants. Charges were framed
against the appellants under Sections 399/402 of the Indian Penal Code to
which the appellants pleaded not guilty and claimed to be tried.
5. The Learned Advocate representing the appellants submitted as follows:-
i. “P.W. 1 has stated in cross-exam at Page 6 that he knew the appellant
No. 2 before the incident. In Exam-in-Chief at Page 6 the P.W. 1
identified 3 accused persons i.e. appellant No.1, 2 and another – at
Page – 7, Para 1, P.W. 1 stated that one week after incident P.W. 1 met
with ‘Sanatan Karati’, the owner of the ‘Pan Baraj’, where the
appellants & others miscreants assembled, the P.W. 1 did not talk with
him regarding the incident, which cannot be believed in common sense.
In Para 3, P.W. 1 stated that he did not remember whether the dacoits
hurled bombs and police also fired at them. There was no signature of
P.W. 1 on the seized knife, sword and ‘sabal’. He stated that those type
of knife, iron rod and sword and ‘sabal’ were available in market.
ii. P.W.2 identified his signature in the seizure list but could not recognize
the appellants on dock (failed to identify).
iii. P.W. 3 stated at Page 12 in Exam-in-chief that he saw the dacoits who
were arrested inside the van. It was dark. He saw them only once and
would not be able to recognize them if they were produced before him.
4In the cross-exam at Page 12, what he is saying is totally
contradictory. He stated that he did not recollect whether he stated to
the Investigation Officer that in the torch light he recognized/identified
‘Paresh Mondal’ i.e. the appellant No.2, Akash Ali Khansama and ‘Anil
Bag’ i.e. the appellant No.1 and others. He also stated in cross-exam at
Page 12 that he knows the appellants before incident. He also stated in
his cross-examination that he did not notice whether those three
accused on dock were inside the police van at that time. He stated at
Page 12 that police told him to sign as witness in seizure list. He also
stated at Page 13 in cross-exam that he did not see whether police
seized the articles (Alamat). Prosecution declared the P.W. 3 hostile.
iv. P.W. 4 has stated in his Exam-in-Chief at Page 15 that police told him
to sign as witness in seizure list. He has also stated that it is not
possible for him to identify the articles (Alamats) as those articles are
old and rust. He also stated in Page 15 that he heard that dacoits were
taken away in police van, he went there late and he saw 5/6 persons
inside the van. He could not recognize of the dacoits in court as he saw
them only once at night. In cross-exam at Page 16 at 2nd Paragraph he
stated that he found the Alamat at ‘Sasti Tala More’ and signed the
seizure list at ‘Sasti Tala More’ which is not the place of occurrence. He
also stated that ‘Alamats’ are easily available in the market.
Prosecution declared the P.W 4 hostile.
v. P.W. 5 at Page 18, in 1st para at cross-exam stated that how he could
know that the dacoits assembled in order to commit dacoit in the house
5of Nemai i.e. P.W. 4 but police officer told the P.W. 5 about such thing.
In 3rd paragraph at Page 19, P.W. 5 stated that he also knew the
appellants – In Page 20 at 3dpara he stated that he did not remember
whether any other wearing apparels were given to the appellant or not
and seized alamat have no specific identification mark.
vi. P.W. 6 at Page 24 has stated that he has not signed over seized
Alamats. Such type of articles are available in open market P.W. 7 has
stated at Page 27 that one sword, one ‘lathi’, pieces of Bidi’ were
seized from the place of occurrence. He identified the sized sword, rod,
knife and lungi’ i.e. the wearing apparels but not the knife or iron rod
possessed by the appellants. He identified the appellants but failed to
identify the another person who was acquitted – At Page 28 in cross-
exam he has stated that he does not know about the rules of seizure.
He does not know whether it is not necessary to obtain signature of the
accused persons in the seizure list, he did not sign in the seizure list on
that date. He identified the bombs, pipe gun and pieces of Bidi etc. in
Court.
vii. P.W.8 is the I.O, submitted Charge Sheet, he has stated at Page 33 in
cross-exam that without a label it is not possible to identify such type
of knife, sword, iron rod, lungi if those items are mixed up with 10/12
other items.
viii. P.W.9 stated in cross-examination at Page 36 in the last paragraph
that no ‘Malkhana’ registered was produced before the Court.
6ix. Search and seizure of offending weapon is a very important aspect in
case under section 399/402 of Indian Penal Code and section 25/27 of
Arms Act and Sections 3/4 E.S. Act. The P.W. 1, 2, 3 4 and 5 were the
local people who accompanied the police personnel.
x. The P.W. 1 stated at 3rd Para Page 7 in cross-exam that he signed on
the seizure list at police station on the request of the police, but he
identified his signature and seizure list. P.W. 4 was declared hostile, at
1st Para Page 15, he clearly stated as the weapons were old with rust
it was not possible for him for identify the ‘alamat’ and also stated that
Police Officer told him to sign on the seizure list and he identified his
signature.
xi. Such type of knife, sword and sabal are available in market, those
seized articles have not specific identical market. The seized article
from the appellants i.e. knife and sabal, there was no signature of P.W.
1. P.W. 2 stated in Exam-in-Chief that he identified his signature on
seizure list but also stated that it was not possible for him to identify
seized ‘Alamat’. Regarding search and seizure, at Page No. 12, P.W. 3
stated that police told him to sign on the seizure accordingly he signed.
xii. At Page 16 P.W.4 also stated that he signed at the seizure list, not at
the place of occurrence but at ‘Sasti tala’ more. P.W. 5 also identified
his signature on seizure list, he also stated at Pg 20 that sword, knife,
sabal are available in the market and he did not signed on the seized
‘Alamat’.
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xiii. It appears from the evidence that search and seizure of offending
weapon was absolutely doubtful and there are contradictions
regarding the matter of seizure of offending weapons from the
appellants. The seized articles were not labeled and there were no
signature of the witness on such label and the witnesses also stated
categorically about those knife and iron rod are easily available in the
market. Pipe gun and 4 live booms were seized from the two other
accused namely Alakddin Sk. And Giusuddin Sk., who are not the
appellant and they were absconding. Their Alamats and they were
also not placed in court before the witnesses. Investigation Officer at
Page 33 in XXX Exam stated that without a label it is not possible to
identify the seized article and no FSL report was produced before the
court. Therefore, search and seizure was not at all reliable.
6. The Learned Advocate for the State obliterated the necessity of T.I. Parade on
account of the appellants to have been intercepted and apprehended on
spot. The corroborative evidence of the prosecution witnesses fortified the
prosecution case beyond incertitude and the appeal should be dismissed.
7. To sustain a conviction under these sections, the prosecution must establish
a high threshold of proof regarding criminal intent and active assembly:
i. Section 399 IPC (Preparation to commit dacoity): Requires explicit
proof that the accused were actively organizing, gathering weapons,
or planning an imminent dacoity. Mere presence or assembly does
not automatically equal “preparation.”
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ii. Section 402 IPC (Assembly for purpose of committing dacoity):
Requires proof that five or more persons gathered with the shared,
specific intent of committing dacoity.
8. As established in landmark rulings like Chaturi Yadav v. State of Bihar (AIR
1979 SC 141), the mere gathering of individuals–even if some possess
common market tools–cannot support an inference that they met to commit
dacoity unless a clear agreement or active planning is proven.
9. The fact that the trial commenced after a 14-year delay heavily compromises
the prosecution’s case. Under Article 21 of the Constitution of India, the
right to a speedy trial is a fundamental facet of a fair judicial process as
observed in Hussainara Khatoon v. State of Bihar (1979 AIR 1369). A 14-year
delay without justifiable cause inherently prejudices the defence.
10. Impact on Witness Memory: Human memory degrades over more than a
decade. This erosion of memory is blatantly visible across the depositions of
the prosecution witnesses, who routinely contradict their initial statements,
fail to recall specific events, and cannot provide steady testimony.
11. A central pillar of the appeal rests on the complete lack of a Test
Identification Parade (T.I. Parade) combined with failed dock identifications.
In a dark, nighttime encounter where the accused were total strangers to
several witnesses, a T.I. Parade under Section 9 of the Indian Evidence Act
was mandatory to validate identity. P.W.-2 flatly failed to recognize the
appellants on dock. P.W.-3 admitted in examination-in-chief that it was
dark, he only saw the suspects once inside a van, and would not be able to
recognize them if produced. His cross-examination completely collapsed
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when confronted with his contradictory statement to the Investigation Officer
regarding torchlight identification. P.W.-4 admitted he arrived late, saw 5/6
persons only once at night inside a van, and could not recognize the dacoits
in court.
12. Dock identification made 14 years after an incident, without a corroborative
prior T.I. Parade, is legally worthless when the witnesses are strangers (State
of H.P. v. Lekh Raj).
13. The recovery of the offending weapons (Alamats) is legally unreliable due to
systemic procedural violations and admissions of coercion: P.W.-1 admitted
he signed the seizure list at the police station, not at the spot of the
occurrence, purely at the request of the police.
14. P.W.-3 admitted that the police told him to sign on the seizure list,
prompting the prosecution to declare him hostile.
15. P.W.-4 explicitly stated that police told him to sign the list and that he
signed at ‘Sasti Tala More’, which is not the place of occurrence. He was also
declared hostile.
16. P.W.-1, P.W.-5, and P.W.-6 all stated items like knives, swords, iron rods,
and sabals are generic articles easily available in the open market. P.W.-5
confirmed that the seized alamats bore no specific identification marks.
17. P.W.-8, the Investigating Officer, made a fatal admission during cross-
examination: without a label, it is impossible to identify these specific items
(knives, swords, iron rods, lungis) if mixed with 10 to 12 other similar items.
18. P.W.-9 testified that no ‘Malkhana’ register was produced before the Court.
Furthermore, no Forensic Science Laboratory (FSL) report was produced to
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link any of the weapons or suspected explosive materials (bombs) to the
appellants. The failure to produce the Malkhana register or establish secure
labeling creates a massive break in the chain of custody, making it highly
probable that the material objects were tampered with or substituted.
19. The local independent witnesses (P.W.-3 and P.W.-4) who accompanied the
police team flatly refused to support the prosecution’s narrative and were
declared hostile.
20. P.W.-5 admitted that he had no independent knowledge of the dacoits
assembling to target Nemai’s house; he only knew because the police officer
told him. This constitutes inadmissible hearsay evidence.
21. The alamats belonging to the absconding accused (Alakddin Sk. and
Giusuddin Sk.) were never produced before the witnesses in court, leaving a
gaping hole in the joint liability requirement of five or more persons under
Section 402 of the Indian Penal Code.
22. The prosecution has failed to establish its case beyond a reasonable doubt
on multiple fronts:
i. A 14-year delay vitiated the trial and organically destroyed witness
credibility.
ii. The total absence of a T.I. Parade coupled with failed/contradictory
dock identifications strips the case of its target targets.
iii. The search and seizure mechanism stands entirely discredited by
independent witnesses admitting they signed blank/misplaced lists
under police direction, paired with a complete failure to label
weapons or produce a Malkhana register.
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23. The foundational tenets governing the invocation of Sections 399 and 402 of
the Indian Penal Code demand an unyielding standard of proof, absolute in
its demonstration of an active, conspiratorial assembly bent on the imminent
execution of dacoity. In the crucible of appellate scrutiny, the record
compiled by the prosecution crumbles under its own structural infirmities.
The narrative of the state, woven from frayed threads of inconsistent
testimonies, procedural deviations, and an extraordinary temporal chasm,
fails to bridge the gap between mere suspicion and judicial certainty.
24. The extraordinary delay of fourteen years before the commencement of the
trial is not merely a procedural blemish; it is an organic, fundamental vice
that completely dismantles the integrity of the prosecution’s case. In the
realm of constitutional jurisprudence, a protracted trial stretching over more
than a decade ceases to be an adjudication and transforms into a systemic
violation of the right to a speedy trial, seamlessly protected under the canopy
of Article 21 of the Constitution of India. The passage of fourteen years
inevitably introduces an insurmountable vulnerability into the oral
evidentiary structure. Human memory is not an immutable monument
etched in stone; it is an ephemeral faculty that fractures and fades under the
relentless weight of time. To expect witnesses to recount with precision the
chaotic, fast-moving dynamics of a nocturnal apprehension after the lapse of
almost a generation is to invite artistic imagination in place of reliable
observation. This temporal erosion is vividly manifested in the shattered
testimonies of the prosecution witnesses, whose statements fluctuate
between amnesia and irreconcilable contradictions.
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25. This profound temporal gap directly exposes the absolute absence of a Test
Identification Parade, rendering the prosecution’s reliance on subsequent
dock identification a legal nullity. In an alleged nighttime encounter
shrouded in darkness, where the suspects were complete strangers to the
civic witnesses, an immediate, untainted identification mechanism under
Section 9 of the Indian Evidence Act was an indispensable safeguard.
Instead, the court is presented with a series of faltering, contradictory dock
identifications recorded after this astronomical delay. P.W.-2 flatly failed to
recognize the appellants in the dock, suffering a total breakdown in
identification. P.W. 3, while admitting in his examination-in-chief that the
prevailing darkness and a fleeting glimpse of suspects confined within a
police van rendered future identification impossible, collapsed during cross-
examination when confronted with his starkly antithetical assertions to the
Investigating Officer regarding a torchlight identification. P.W.-4 similarly
disabused the prosecution’s narrative, conceding that his belated arrival at
the scene and a singular nighttime glance at individuals inside a vehicle
precluded any reliable identification in open court. To base a conviction
upon such mercurial, belated dock identifications, completely
uncorroborated by a contemporaneous identification parade, would be to
substitute judicial gravity with speculative conjecture.
26. Equally fatal to the prosecution’s thesis is the thoroughly compromised and
artificial nature of the search and seizure apparatus, which cannot
withstand the strictures of a delayed trial where the physical evidence
remains unauthenticated. The recovery of the offending weapons, or
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alamats, is stripped of all credibility by the explicit admissions of the
witnesses themselves. P.W. 1 confessed that his signature was affixed to the
seizure list not at the theater of occurrence, but within the secure confines of
the police station, executed merely to accommodate the desires of the police.
P.W.-3 and P.W.-4 openly acknowledged that their signatures were procured
under police dictation, with P.W.-4 locating this mechanical act at ‘Sasti Tala
More’–a venue entirely distinct from the alleged place of occurrence. These
candid admissions of administrative coercion and displacement
appropriately compelled the prosecution to brand its own vital civic
witnesses as hostile.
27. Furthermore, the physical integrity of the seized items is legally
compromised. P.W.-1, P.W.-5, and P.W.-6 uniformly testified that the
recovered knives, iron rods, swords, and sabals are ordinary articles of
utility, widely available in the open market and devoid of any distinctive or
idiosyncratic markings. This anonymity becomes insurmountable when
paired with the devastating admission of the Investigating Officer, P.W.-8,
who conceded that without a specific label, it would be an impossible task to
identify these generic weapons if commingled with identical items. The chain
of custody suffers an irreparable fracture as P.W.-9 affirmed that no
‘Malkhana’ register was ever produced to validate the secure and continuous
custody of these articles, nor was any Forensic Science Laboratory
evaluation brought forth to connect these crude instruments or alleged
explosives to the appellants. The failure to present the alamats attributed to
the absconding accused, Alauddin Sk. and Giusuddin Sk., further fragments
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the joint liability necessary to establish a collective criminal assembly.
Ultimately, when the independent fabric of local testimony stands declared
hostile, and witnesses like P.W.-5 concede that their knowledge of an
impending dacoity at Nemai’s residence was merely a derivative product of
police narration, the evidence sublimates into inadmissible hearsay. The
essential ingredients of preparation and assembly are entirely
unsubstantiated, and where the evidence is so deeply saturated with doubt,
the appellate court must intervene to vindicate the liberty of the individual,
thereby allowing the appeal and setting aside the conviction.
28. In view of the above discussions, the instant appeal being CRA 120 of 1996
is allowed.
29. Accordingly, the order of conviction dated 27.03.1996 and 29.03.1996
passed by the Learned Additional District and Sessions Judge, 4 th Court,
Alipore, South 24-Parganas in Sessions Trial No.1(3)93 arising out of
Sessions Case No. 9(1)92 is set aside.
30. There is no order as to costs.
31. Trial Court records along with a copy of this judgment be sent down at once
to the Learned Trial Court for necessary action.
32. 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.)
