Shashidhar and Others vs The State and Others

K.N. Phaneendra, J.—1. Criminal Appeal No. 3668/2010 is preferred by the State for inadequacy of the sentence passed by the Trial Court and for enhancement of sentence to the maximum extent under Section 402 of IPC. The accused have preferred appeal in Criminal Appeal No. 3685/2010 seeking setting aside the judgment and order passed in S.C. No. 230/2009 and 240/2009.

As both the cases are arising out of the same judgment and order of the Trial Court, they are taken up together and common judgment is passed.

State through Aland Police laid a charge sheet against nine accused persons who are the appellants in Crl. A. No. 3685/2010 for the offences punishable under Sections 399 and 402 of IPC. After filing of charge sheet the Court took cognizance and after committal proceedings, the Sessions Court has secured the presence of eight accused persons. A split up charge sheet was filed against accused No. 9, thereafter said accused was also secured and two Sessions Cases were registered in S.C. Nos. 230/2009 and 245/2009. The Court also framed charges against the accused initially under Section 399 of IPC only. The prosecution in order to prove the guilt of the accused examined as many as 12 witnesses, PWs.1 to 12 and got marked Exs.P1 to P7 and M.Os.1 to 10. The accused were also examined under Section 313 of Cr.P.C. Accused No. 7 led defence evidence by examining himself as D.W.1. After evaluating the oral and the documentary evidence on record, the Trial Court has convicted the accused persons for the offence punishable under Section 402 of IPC and sentenced them to undergo simple imprisonment for a period of six months and custody period of accused Nos. 1 to 6 was treated as sentence of imprisonment. The learned Judge has also observed that in view of the fact that, accused Nos. 1 to 6 were given set off, accused Nos. 7 to 9 were not being ordered for custody, the Court has ordered no imprisonment for accused Nos. 7 to 9 on the ground of parity, under Section 402 of IPC. Therefore, the Court has only imposed a fine of Rs. 5,000/- each against accused Nos. 1 to 9.

The first information report and spot panchanama would narrate the entire story of the prosecution which are marked at Exs.P6 and P1 respectively. According to these documents, it is the case of the prosecution that on 16.03.2009 at about 7.45 p.m., PW.12-M.G. Sathyanarayanrao, PSI, Law and Order of Aland Police had received a credible information that, about 8 to 9 persons have assembled themselves at a place called Shakapur Hoddi, Aland-Hirolli Road and they were making attempt to commit dacoity. On receipt of such information, P.W.12 along with panchas and other Police personnel went to that particular spot in the jeep with the help of two search lights. They observed 8 to 9 persons were assembled themselves at that place and on seeing the police, three persons ran away from the spot and six persons (accused Nos. 1 to 6) were caught on the spot. On search of the accused persons, the police have seized M.Os. 1 to 10 at the instance of accused Nos. 1 to 6 on the spot i.e., four sticks, one iron rod, chili powder, two black clothes, one mobile and Rs. 7,000/-. The police have drawn up panchanama as per Ex. P1 and thereafter, accused Nos. 1 to 6 were brought to the police station and case was registered in Crime No. 67/2000 and after due investigation, the charge sheet was filed. Amongst all the witnesses only the police witnesses have supported the case of the prosecution. PW. 1-Shrishail and PW.2-Prabhu who are the independent witnesses have totally turned hostile to the case of the prosecution. They have only stated that about eight months'' back the police have taken their signature to a paper and they do not know what was written in those papers later and they have specifically stated that police have not seized any article in their presence. In the course of cross-examination, nothing has been elicited from these two witnesses in order to corroborate the evidence of other police witnesses.

Remaining police witnesses namely, PWs.3 to 8 and 12 are the witnesses who have supported the case of the prosecution reiterating as to what has happened on that particular day and about raid conducted by them on the spot, arrest of accused Nos. 1 to 6 and recovery of M.Os.1 to 10 at the instance of accused Nos. 1 to 6 and also three accused persons running away from the spot. I would like to discuss the evidence of these witnesses little later.

PWs.9 and 10 are the Police Personnel who went in search of accused for apprehending them.

PW.11 is the person who has conducted the investigation to the extent of deputing police personnel for apprehending the accused and submitting charge sheet to the Court. Therefore, evidence of PWs.1, 2 and 9 to 11 is of not so important in this case.

PWs.3 to 6 have deposed before the Court that on 16.03.2009 when they went to the particular spot they observed that about nine persons holding iron rods and chili powder and putting stones across the road were making attempt to commit dacoity and out of them, six persons were caught and three persons ran away from the spot and there was recovery of M.Os.1 to 10. Whereas PWs.7 and 8 have not stated in detail about the accused persons making any attempt to commit dacoity by putting stones across the road and attempting to do any overt-acts but they have simply stated that six persons were caught on the spot and three persons ran away and M.Os.1 to 10 were recovered.

PW. 12 has not even stated in his examination-in-chief that any of the accused persons were making any attempt or preparing themselves to commit dacoity, but he has stated that when they reached that particular spot with the help of search light they have observed that accused persons were sitting near a thorny bush and the police were successful in nabbing six persons and three persons ran away and he has also stated about the recovery of M.Os. 1 to 10 from the accused.

On perusal of the cross-examination of these witnesses, there is nothing to indicate that the police did not go to the particular spot and caught hold accused Nos. 1 to 6. Of-course, there is denial of the entire story of the prosecution by way of suggestions to the witnesses. However, in the course of cross-examination, it is suggested to PW.12 that as the police could not able to trace out some accused persons in the village of the accused who were committing matka offence, could not able to get any material so far as that matka case is concerned, therefore falsely implicated these accused persons into this crime. Except that nothing has been elicited in the course of cross-examination. Therefore, there is no reason to disbelieve the version of the police officials so far as the police going to that particular place and nabbing accused Nos. 1 to 6 on the spot.

Though the prosecution has established that the accused persons were assembled with some deadly weapons in their hand at that particular place, but the Court has to see whether the prosecution has proved the case beyond reasonable doubt to attract ingredients of Section 399 or Section 402 of IPC. In fact, the learned Sessions Judge has come to the conclusion that the prosecution has not established the case under Section 399 of IPC but the Judge was of the opinion that prosecution has established the case under Section 402 of IPC for the purpose of convicting and sentencing the accused.

In order to attract Section 399 of IPC or Section 402 of IPC, necessary ingredients to be established by the prosecution is that accused persons have either made any preparation for committing dacoity or they have assembled at particular place for the purpose of committing dacoity. Therefore, it goes without saying that mere preparation by them or mere proof of assembling of the accused persons is not sufficient to establish the guilt of the accused unless the prosecution places sufficient material that the accused persons were assembled there for the purpose of committing dacoity. If the purpose of committing dacoity is not established, mere establishment of any assembly or even unlawful assembly of the accused is not punishable. In this background, the Court has to see whether the prosecution has proved that the accused persons were assembled in the said place for the purpose of committing dacoity.

In this regard, before adverting to the factual matrix of this case as noted above, it is worth to note here a decision of the Hon''ble Apex Court reported in , (1979) 3 SCC 430 in the case of Chaturi Yadav and others v. State of Bihar wherein, the Hon''ble Apex Court has observed that,-

"Mere fact of assembling by eight persons in a school compound near a marketplace at 1 a.m., and recovery of a gun and cartridges from them is not sufficient to convict them unless it is proved that they were assembled there for the purpose of commuting dacoity. Possibility of intention to commit some other offence cannot be safely eliminated. Therefore, conviction is not sustainable either under Section 399 of IPC or under Section 402 of IPC."

The learned counsel for the appellants has also relied upon a ruling of High Court of Madhya Pradesh reported in , 2012(4) Crimes 639 (M.P.) in the case of Jitendra Soni v. State of Madhya Pradesh, wherein the Court has observed as under:

"Making preparation to commit dacoity and assembling for committing dacoity:--Appellant had armed with weapons had assembled when apprehended in a police trap. Trial Court convicted them under Section 402 of IPC while acquitting them under Section 399 of IPC. No seized article was produced before the trial Court during evidence. Police officer who conducted raid and got the case registered himself had investigated the case. Appellant would deserve acquittal on grounds on which trial Court acquitted them of charge under Section 399 of IPC."

The Court has further observed that making preparation to commit dacoity under Section 399 of IPC and assembling for committing dacoity under Section 402 of IPC, the ingredients of which are almost similar. Therefore, acquittal under Section 399 of IPC would enable the Court to acquit the accused under Section 402 of IPC also.

In another decision reported in 2011(3) Crimes 83 (P&H) between Rajesh and others v. State of Haryana, the Court has observed that-

"Five accused assembled carrying weapons in order to make preparation to commit robbery. Conviction on testimony of police official witnesses. No efforts were made to involve any independent witness though police party had sufficient opportunity-Material discrepancies in statement of official witnesses and they being police officials such contradictions could not be ignored-No report of FSL whether alleged recovered pistol was in working condition-Requirement of independent witness was based upon rule of prudence particularly where there was prior information-conviction could not be sustained."

Bearing in mind the above said rulings, the Court has to appreciate the evidence on record. As I have already observed that PWs.3 to 6 have in fact stated with regard to the preparation and attempt by the accused persons to commit dacoity in their evidence stating that the accused persons have put stones across the road and attempting to commit dacoity. But PWs.7 & 8, including PW-12 who led the raiding party, have never whispered anything about the accused persons sitting across the road or near the road, and putting stones across the road. Further, added to that, these important facts are conspicuously absent in Ex. P1 and P6 i.e., Panchanama and the complaint. It is also notable point that PW.12 who is the person, who led the raiding party has not even whispered anything about the overt acts of any of the accused except stating that they were hiding near a thorn bush and they were caught from that place. Except that, he has not stated anything with regard to any attempt or any preparation made by the accused for the purpose of committing dacoity. Therefore, some of the police witnesses have though stated that the accused were making attempt to commit dacoity but the other witnesses never stated the same and the same is not narrated in the panchnama or the complaint. In such circumstances, it is very difficult to believe such portion of the evidence wherein the police witnesses themselves contradicted. Moreover, stones alleged to have been used for blocking the road have not been seized and produced before the Court.

It is an admitted fact that PW-12 is the person who received the credible information, led the raiding party to the spot, conducted mahazar and almost completed the investigation. However, PW. 11 has only filed the charge sheet to the Court. Therefore, in the absence of sufficient materials to come to a definite conclusion that these accused persons were assembled there for the purpose of committing dacoity, it cannot be said beyond all reasonable doubt that the prosecution has proved the case under Section 399 or 402 of IPC.

The learned High Court Government Pleader attempted to persuade this Court by submitting that the accused persons holding sticks, rods, chilli powder and black colour clothes to cover their faces. That itself shows that they were assembled there for the purpose of committing dacoity. But such acts may create a strong suspicion that they might have gathered there for the purpose of committing some offence, but with all conclusiveness beyond reasonable doubt, the Court cannot say that they have assembled there for the purpose of committing dacoity. It is not that mere proof of assembly of the accused is required but the prosecution has to prove all the ingredients of the provision beyond reasonable doubt. Any amount of suspicion will not take the place of proof.

Though the police have stated that three accused persons ran away from the spot, there is absolutely no attempt made during the course of investigation to get those persons identified by any of the witnesses, perhaps may be the reason, none of the police officials have stated that they have seen those accused persons and they can identify them at any stage. Except the voluntary statement of the accused persons who were arrested first, nothing has been placed on record to establish that accused Nos. 7 to 9 are the persons assembled there with accused Nos. 1 to 6 for the purpose of committing dacoity and ran away at the relevant time. Even the learned Sessions Judge has not bestowed his attention in this regard and he has not even whispered anything about the complicity of these accused Nos. 7 to 9 in the crime and how the prosecution has connected them into the crime.

Looking to the above said facts and circumstances of the case, when the Trial Court has virtually acquitted the accused persons for the offence punishable under Section 399 of IPC, it could not have ventured upon to convict the accused under Section 402 of IPC because as I have said, the ingredients of the offence punishable under Section 399 and 402 of IPC are almost similar and both the provisions say that the purpose of dacoity has to be established which has not been done so far as this case is concerned.

In the above said circumstances, the judgment of conviction and sentence passed by the Trial Court is not sustainable in law. Hence, the same is liable to be set aside. Consequently, the appeal preferred by the State is also liable to be dismissed. Hence, I proceed to pass the following:

ORDER

Criminal Appeal No. 3668/2010 filed by the State is hereby dismissed. Criminal Appeal No. 3685/2010 is hereby allowed. The judgment of conviction and sentence passed by the Trial Court against the appellants under Section 401 IPC is hereby set aside. If any fine amount is deposited, the same shall be refunded to the accused. If bail bonds and surety bonds are in force, the same are hereby cancelled.