Gaddeppa vs State of Karnataka

K.N. Phanrendra, J.—The appellants are arrayed as accused Nos. 1,2 and 4 in S.C.No. 32/2010 for the offence under Section 399 of IPC. The learned District and Sessions Judge, Yadgiri, has convicted the accused/appellants for the offence under Section 399 of IPC and sentenced them to undergo rigorous imprisonment for a period of 5(five) years and to pay a fine of Rs. 10,000/- each. In default to pay fine, each of the accused shall further undergo rigorous imprisonment for a period of six months.

The brief factual matrix of the case that emanate from the records are that, -

On the night of 31.07.2009 PSI of Hunasagi was on patrolling duty. In the early morning at 2:00 a.m., on receipt of some credible information that about five persons armed with weapons are making preparation to commit dacoity on Hunasagi, canal Road near Malanoor canal, the Police Sub-Inspector along with his staff and after collecting two panch witnesses went to that particular place at about 3:00 a.m. in their office jeep. In the said place, they observed that one person wearing Dhoti, holding a bag in his hand was standing on the said road to stop the vehicles. After seeing the police jeep, he started running away and at the same time, other four persons who were hiding themselves in the pit by the side of the road also tried to escape. However, all these persons were caught by the police and on enquiry the accused persons have disclosed that they gathered for the purpose of committing dacoity. It appears, in the presence of the panch witnesses, the police have drawn the mahazar as per Ex.P1 and recovered one 10 ft., long rope from accused No. 1- Gaddeppa and one iron road at the instance of accused No. 2-Parashuram and one iron knife at the instance of accused No. 3-Raju and one plastic bag at the instance of accused No. 4- Buddesab and one bag containing 17 mobile sets at the instance of accused No. 5- Shivappa and thereafter, accused Nos. 1 to 5 were arrested and after completion of investigation, the charge-sheet was submitted against the five accused persons for the offence punishable under Section 399 of IPC.

The prosecution in order to prove the guilt of the accused examined five witnesses as PWs. 1 to 5 and the documents were marked at Exs.P1 to P3 and MOs. 1 to 5 were marked before the Trial Court.

The Trial Court after appreciating the oral and documentary evidence on record has come to the conclusion that the prosecution has proved the case beyond all reasonable doubt and convicted all the accused persons for the above said offence.

It appears, during the pendency of the trial, accused No. 3 died and proceedings before the Sessions Court as against accused No. 3 stood abated. Accused Nos. 1, 2 and 4 i.e. appellants before this Court have filed this appeal and on the other hand accused No. 5- Shivappa filed a separate appeal in Criminal Appeal No. 3514/2011 and the same was abated on 06.12.2013 on the report that the appellant therein died on 25.11.2013.

Now the Court has to see whether the Trial Court has committed any serious error in convicting accused persons for the offence punishable under Section 399 of IPC.

The prosecution has examined the witness by name PW. 1- Daulat who was the PSI of Hunasagi as on that date; PW.2- Basavaraj was a Head Constable, Hunasagi Police Station; PW.3 Marayya is an independent panch witness who has signed Ex.P.1. These three witnesses are the material witnesses who have supported the case of the prosecution. PW.4- Mohan is the Assistant Engineer attached to PWD Surapur, who has prepared the spot sketch as per Ex.P3. PW.5- Shankar Mallikarjunappa Ragi is the CPI who laid charge-sheet after examining some of the witnesses.

On perusal of the evidence of PWs. 1 to 3, it would indicate that they have categorically stated that all of them on 31.07.2009 at about 3.00 a.m., went on Hunasagi-Thalikote road near a canal and observed one person was trying to stop the vehicle and on seeing the police vehicle, the said person and other persons who were also sitting near the canal started running away from the spot and the police have caught hold those persons and on enquiry, they disclosed that they were gathered there for the purpose of committing dacoity. Witnesses have also deposed that there was recovery at the instance of accused Nos. 1 to 5 i.e., a rope was recovered from accused No. 1, iron rod was recovered from accused No. 2, a knife was recovered from accused No. 3, chili powder from accused Nos. 4 and 17 mobile sets were recovered from accused No. 5. These witnesses have been cross-examined.

On careful perusal of the entire oral and the documentary evidence, as rightly contended by the learned counsel for the appellants nothing has been elicited as to for what purpose accused persons gathered there, whether there was any attempt done by them in order to commit dacoity. There is no material to show that they have actually stopped any vehicle and any owner or the driver of the vehicle complained that they have made any attempt to commit dacoity. Mere recovery of some articles and also non-explanation of the accused as to why they had gathered in that particular place is not sufficient to fill up the gap on the side of the prosecution to prove that the accused were actually gathered there for the purpose of committing dacoity in order to attract Section 399 or Section 402 of IPC.

In this regard, it is worth to mention here a decision of Hon''ble Apex Court reported in AIR 1979 SC 1412 in the case of Chaturi Yadav and others v. State of Bihar, wherein the Court at paragraph-4 has observed as hereunder:

"4. The Court below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away''. The mere fact that these persons were found at 1 a.m. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 of IPC against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court."

In the above said case also the accused persons were caught at odd hour at 1.00 a.m., near a school which is an isolated place. The guns and cartridges were recovered from eight accused persons. The Court has also observed that in the said case also accused persons have disclosed that they were assembled there for the purpose of committing dacoity. But the Court refused to accept this statement being inadmissible in evidence as hit by Section 25 of the Indian Evidence Act. The Court in clear terms has observed that except the above said presence of the accused persons at the spot, recovery of some articles and voluntary statement of the accused, no other material to show that they were gathered there for the purpose of committing dacoity. The Court has also observed that the possibility of appellants might have collected for the purpose of committing some other offence cannot be safely eliminated in the absence of specific proof by the prosecution to show that they were gathered there for the purpose of committing dacoity. This ruling has been consistently followed in various decisions and particularly, in the case of Mahendra Choudhary and others v. State of Bihar, reported in 2000 (4) Crimes 17 Ranchi Bench of Patna High Court has almost reiterated the above said aspect. In that case also, there was recovery of country made pistol loaded with live cartridges from the accused persons who were gathered in an isolated placed at odd hour. Except the police evidence, nothing has been produced before the Court to show that actually the accused persons were gathered there for the purpose of committing dacoity.

On plain reading of Section 399 of IPC, it makes abundantly clear that any preparation for committing dacoity is only punishable. Even under .Section 402 of IPC if the accused persons assembled for the purpose of committing dacoity then only they are punishable. Any much of the imagination by the Court will not substitute the proof. The learned counsel for the appellants also brought to my notice that the PSI who visited the spot has stated in his evidence that he himself has suspected that the accused persons might have assembled there for the purpose of committing dacoity. Mere suspicion or imagination by the police officer bereft of any other material is not sufficient to draw a conclusive inference that the accused persons were gathered there for the purpose of committing dacoity.

In view of the above facts and circumstances of the case, I am of the opinion that the prosecution has failed to prove the guilt of the accused under Section 399 of IPC. Therefore, the judgment of conviction and sentence passed by the learned Sessions Judge against the appellants is not sustainable either in law or on facts. Therefore, the same is liable to be set aside.

Hence, I proceed to pass the following:

ORDER

The appeal is allowed. The judgment of conviction and sentence passed by the learned District and Sessions Judge, Yadgir, in S.C.No.32/2010 dated 19.11.2010 is hereby set aside. The accused persons are acquitted for the offence levelled against them under Section 399 of IPC.

If any amount of fine is deposited, the same is ordered to be refunded to the accused persons (appellants herein). The bail bonds and surety bonds, if any executed by the appellants and their sureties are hereby cancelled.