Amba vs State of M.P.

S. K. Pande, J.

Additional Sessions Judge, Betul in Session Trial No. 67/90 vide impugned judgment dated 27.02.91 recording conviction of appellant u/s 402 I.P.C. sentenced him to undergo R.I. for a period of 18 months and 21 days. Being aggrieved, appellant has preferred this appeal u/s 374(2) Cr.P.C.

S.H. Ali (P.W.-8), Incharge Police Station - Bhaisdehi on 10.08.89 received the information that 7-8 persons armed with weapons have assembled in a field on Betul - Paratwara road. On the basis of information, Incharge Police Station Jhallar, Athner were directed to move towards village Gudgaon. Sub Inspector S.H. Ali along with staff also proceeded. At village Gudgaon on Betul - Paratwara road accused/appellant and other were hiding themselves in the field. On being asked to surrender, one of them fired from gun. Accused/ appellant Amba and other associates Tulsiram, Phasakia, Bhagwan Das were apprehended. From appellant, a knife locally known as ''katar'' was seized. It was revealed that appellant in association with others were preparing to commit dacoity at the house of one Maruti Kunbi of village Chikhlapur. Accordingly, recording F.I.R. (Exhibit P-8) offence u/s 399/402 I.P.C. was registered. Completing the investigation, appellant and others were charge-sheeted.

Appellant abjured the guilt. However, the court below in S.T. No. 67/90 vide impugned judgment held that appellant was one of five or more persons assembled for the purpose of committing dacoity, as such, recording conviction u/s 402 I.P.C sentenced him to undergo R.I. for a period of 18 months and 21 days. Being aggrieved, appellant has preferred this appeal u/s 374(2) Cr.P.C.

Section 402 I.P.C. reads as under:

Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

This section punishes the assemblage of five or more persons for the purpose of committing dacoity. In order to attract this section it must be proved that: (a) Five or more persons has assembled; (b) they had assembled for the purpose of committing dacoity, and (c) the accused was one of such persons. Section 402 contemplates a stage when the whole project still lies in the realm of design and intention without any attempt having yet been made to give it a concrete shape. In certain circumstances, assembly itself may amount to preparation, for example, where after having planned a dacoity and after having collected the necessary arms, the persons agree to assemble at a particular place in order to proceed there from to place of the raid and in pursuance of that agreement do in fact assemble there. The assembly in such a case would not be an assembly as contemplated by section 402, but would be an act of preparation. It is difficult to prove the agreement by direct evvidence. But the circumstances extablished in a case may lead to the inference that such an agreement existed. If the facts and circumstances are susceptible of two interpretaions, one in favor of the prosecution and the other in support of the defence version, then the rule which applies to circumstancial evidence would prevail and the benefit of doubt, if any, would have to go to the accused."

On receiving the information, P.W.-8 S.H. Ali Sub Inspector proceeded towards village Gudgaon. On being informed, P.W.-4 Anand Diwan, P.W-6 R.C. Rajput respectively Incharge Police Station Jhallar, Athner also proceeded. These witnesses have stated that few persons were found present in a field said to have assembled for committing dacoity at the residence of some persons resident of village Chikhlapur. P.W.-4 Anand Diwan, P.W.-6 R.C. Rajput have stated that persons hiding in the field were asked to surrender. While escaping, one of them fired from gun. Other have been escaped, however, appellant Amba and 3 others namely Tulsiram, Phasakia, Bhagwan Das were apprehended. P.W.-8 S.H. Ali has stated that a knife locally known as ''katar'' was seized from the appellant vide Exhibit P-5, P.W.-1 kalyan Singh, P.W.-2 Sudhakar Rao, P.W-S Lakhu, P.W.-9 Sahanand are other police personals. These witnesses have stated that in their presence appellant Amba and three others were apprehended while escaping from the field on Betul - Paratwara road.

P.W.-1 Kalyan Singh, P.W.-3 Babulal, P.W.-9 Sahanand have stated that they had no knowledge of the purpose for which appellant and others had assembled in the field on Betul - Paratwara road. P. W.-4 Anand Diwan, P.W.-6 R.C. Rajput Incharge Police Station Jhallar, Athner have stated that they also had no information - knowledge regarding purpose of presence of appellant and others in the said field. It was S.H. Ali (P.W.-8) said to have informed that few persons are reported to have assembled in the field with intend to commit dacoity at the residence of some villagers. P.W.-8 S.H. Ali in cross examination para 19 has stated that details of information as to assemblage-preparation for committing dacoity was not received. He was informed that some persons under suspicious circumstances were seen in the field. On the basis aforesaid, he has gathered an impression that the assemblage of appellant and others was in order to commit dacoity.

From evidence aforesaid, nothing has been made out against the appellant that five or more persons had assembled for the purpose of committing dacoity and the appellant was one of such persons. Presence of appellant and others in the dark night in a field adjacent to the road cannot be said an act of assemblage for the purpose of committing dacoity. As such, the court below erred in recording conviction of appellant u/s 402 I.P.C.

Consequently, the appeal is allowed. Setting aside the conviction-sentence passed by the court below vide impugned judgment in S.T. No. 67/ 90 appellant stands acquitted of the charge u/s 402 I.P.C.