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by sayum
05 March 2026 9:33 AM
"Proof of conscious and lawful recovery is sine qua non for conviction under Arms Act," Calcutta High Court set aside a 36-year-old conviction under Sections 25(1)(a) and 27 of the Arms Act, 1959. Justice Prasenjit Biswas, sitting in the appellate side of the Criminal Jurisdiction, found the prosecution case to be riddled with fatal contradictions, lack of corroboration, and wholly reliant on uncorroborated police testimony, and held that the conviction could not be sustained in law.
The Court emphasized: "When seizure witnesses deny recovery and preparation of seizure list, prosecution case regarding recovery becomes highly doubtful—conviction cannot be sustained." [Para 25]
The judgment arises out of C.R.A. No. 304 of 1990, which challenged the conviction and sentence passed by the Additional Sessions Judge, 2nd Court, Jalpaiguri, in Sessions Trial No. 6 of 1990, convicting the appellant to four years’ rigorous imprisonment and fine for alleged illegal possession of firearms.
Independent Witnesses Turn Hostile, Undermine Entire Prosecution Case
The fulcrum of the prosecution's case was an alleged police raid conducted in the early hours of January 18, 1983, near the riverbank of Birkiti, based on secret intelligence, which reportedly led to an armed encounter. The police claimed to have recovered a loaded pipe-gun and cartridges from the appellant, who was also injured during the alleged encounter.
However, four independent witnesses cited by the prosecution as members of the raiding party and seizure witnesses (PW2, PW3, PW4 and PW6)—all categorically denied having participated in or even witnessed the raid and seizure. They were declared hostile, and their evidence shredded the prosecution's version.
Justice Biswas noted: "PW2 and PW6, who were cited as seizure witnesses, did not admit that the alleged seizure list was prepared in their presence… When seizure witnesses themselves deny the seizure and preparation of the seizure list, the authenticity and credibility of the alleged recovery becomes extremely doubtful." [Para 25]
The Court was particularly critical of the fact that PW2 admitted signing the seizure list without seeing any recovered item, simply on instructions from the police officer. Likewise, PW6 confirmed he did not witness any recovery. PW3 and PW4 also disowned any involvement in the incident.
Police Testimony Alone Not Enough When Independent Witnesses Contradict the Case
While reiterating that police testimony alone can form the basis of conviction, the Court laid down a crucial qualification: it must inspire confidence and be free of contradiction, especially where independent witnesses are available but fail to corroborate the official version.
The Court stated unequivocally: "Though there is no absolute legal bar to base a conviction solely on the testimony of police personnel, such evidence must inspire confidence and be free from serious infirmities." [Para 26]
Here, however, the Court found the police version to be seriously undermined by the very witnesses the prosecution claimed to have relied on.
Prosecution’s Failure to Declare PW5 Hostile Further Damages Case
One of the more striking aspects of the case was the testimony of PW5, who categorically denied being on duty or having knowledge of the raid. Yet, the prosecution neither declared him hostile nor cross-examined him, thereby allowing his statement to bind the case.
“The non-declaration of PW5 as a hostile witness has serious legal consequences, as his evidence, having remained unchallenged, binds the prosecution and cannot be brushed aside or selectively ignored,” observed the Court. [Para 34]
This failure, coupled with similar denials by four other independent witnesses, effectively collapsed the prosecution’s attempt to establish the very foundation of the raid, let alone the alleged recovery of arms.
Trial Court Criticised for Relying Solely on Police Evidence Despite Contradictions
In a strong rebuke to the Trial Court’s reasoning, Justice Biswas highlighted that the lower court had disregarded critical evidence from key prosecution witnesses, using their signatures on the seizure list as the sole point of corroboration, while ignoring their express denials of the recovery itself.
The Court held: "Despite the fact that these witnesses were cited as members of the R.G. Party and independent witnesses to the seizure, and despite their failure to support the prosecution case, the learned Trial Judge proceeded to convict the appellant solely on the basis of the testimonies of PW8 and PW9, who are police personnel." [Para 36]
This, the High Court ruled, was a grave error, violating the principle that the prosecution bears the burden to prove its case beyond all reasonable doubt. Given the scale of contradictions and the absence of reliable independent corroboration, benefit of doubt was held to be the only legally sustainable outcome.
Acquittal Ordered After 36-Year Wait
The Court accordingly allowed the appeal, set aside the conviction dated June 27, 1990, and acquitted the appellant of all charges under the Arms Act. As per procedural mandate under Section 437A CrPC (now Section 483 of BNSS, 2023), the appellant was directed to furnish a bond to remain in force for six months.
Further, the Court recorded its appreciation for Ms. Monami Mukherjee, who appeared as Amicus Curiae and provided valuable assistance in securing justice for the appellant.
"Acceptance of uncorroborated police testimony in the teeth of categorical denials by all independent witnesses is impermissible" – Calcutta High Court
Date of Decision: January 29, 2026
