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2007 DIGILAW 776 (BOM)

Satish s/o Vithoba Diwate v. State of Maharashtra

2007-06-19

C.L.PANGARKAR

body2007
ORAL JUDGMENT: 1. This is an appeal by an accused, who was convicted under Section 399 of Indian Penal Code and sentenced to suffer rigorous imprisonment for a period of five years and to pay fine of Rs.2000/, in default to undergo rigorous imprisonment for a period of two months more. 2. The facts giving rise to this prosecution are as under - Police Inspector Prashant Kolwadkar was on petrolling duty along with other constables and Head Constables on 17/8/2006 in the market area of Arvi. At about 2.00 a.m. while they were approaching towards Nehru Market, they found 5 to 6 persons. On spotting them, he immediately directed the members of the petrolling party to encircle those people and to apprehend them. Accordingly, they apprehended five persons. One person, however, was able to run away. Those persons, after apprehension were questioned in presence of the panchas and their search was taken. They were found to be in possession of a tommy, hammer, sword and a bunch of keys. All these articles were seized. The accused were unable to satisfactorily explain as to what they were doing in the dead of the night. They were unable to give any answers. On the other hand, they were giving evasive answers. The Police thereafter filed a charge-sheet against the accused. 3. The Judicial Magistrate (F.C.) committed the accused to the court of Sessions. Court of Sessions framed the charge under sections 399, 402 of Indian Penal Code. After recording the evidence, the court of Sessions found all the accused guilty of offence under Section 399 of Indian Penal Code but acquitted them of offence under Section 402 of I.P.Code and sentenced them to imprisonment for a period of five years. 4. Being aggrieved by this order of conviction and sentence, accused no.1 has preferred this appeal. The other four accused have not preferred any appeal. 5. I have heard Mr.R.M.Daga, learned counsel for the appellant and Shri A.S.Sonare, Additional Public Prosecutor for the State. 6. In the F.I.R. (Exh.29) it is alleged that about six persons had collected around 2.00 a.m. with a tommy, sword, hammer, bunch of keys etc. The conviction is only under Section 399 of I.P.Code. Section 399 of I.P.Code speaks of preparation to commit dacoity. On reading the Section one will find that there are two essential ingredients . 6. In the F.I.R. (Exh.29) it is alleged that about six persons had collected around 2.00 a.m. with a tommy, sword, hammer, bunch of keys etc. The conviction is only under Section 399 of I.P.Code. Section 399 of I.P.Code speaks of preparation to commit dacoity. On reading the Section one will find that there are two essential ingredients . i) the act of accused amounted to preparation and; (ii) it was a preparation to commit dacoity. Obviously, therefore, it must be shown that preparation, if any, was for the purpose of committing dacoity. The accused were allegedly found with some instruments and bunch of keys and a tommy. 7. Learned Additional Public prosecutor for the State contended that the possession of these things would show that they were about to commit dacoity. On the other hand, learned counsel for the appellant contended that this would not show that they intended to commit dacoity only and the possibility of their committing any other offence cannot be ruled out. He submitted that there is no evidence that they had hatched any plan or conspiracy to commit dacoity. The evidence of P.I.Mr.Prashant (PW 4), who had lodged the F.I.R. (Exh.29) needs to be looked into. He states that while he was on petrolling duty along with other policemen, around 2.00 a.m. he found near shop of one Ajmire 5 to 6 people in suspicious circumstances. He states that they tried to run away but five of them were caught on the spot and one of them escaped. It is in his evidence further that he questioned them but they could not give satisfactory answers. He also states that, therefore, he suspected that they had assembled to commit dacoity. (If Marathi deposition is seen, this statement that he suspected that they had assembled to commit dacoity is missing). Suspicion, however, strong cannot take place of proof. Mere fact that the accused were unable to give plausible explanation one could not jump to a conclusion that they had assembled to commit dacoity. There ought to be an evidence that these persons had, in fact, conceived a design to commit dacoity. The possibility of they having come together to commit some other offence has to be ruled out. Here in this case there is no evidence at all that they had designed to commit a dacoity. There ought to be an evidence that these persons had, in fact, conceived a design to commit dacoity. The possibility of they having come together to commit some other offence has to be ruled out. Here in this case there is no evidence at all that they had designed to commit a dacoity. The evidence shows that the Police Officer jumped to a conclusion that they had assembled to commit dacoity, simply because they were unable to give satisfactory explanation. In a case reported in A.I.R.1979 SC 1412 (Chaturi Yadav .vs. State of Bihar), Their Lordships have held as follows - .The Courts 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 persecution 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 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 that the appellant 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 assembled 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 against the appellants. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court. 8. The facts of the reported case are almost identical. Eight persons were found with guns and cartridges at 1.00 a.m. near a school which was close to market place. In our case too the accused were found on road in market place with one sword as weapon. In the reported case, Their Lordships observed that possibility of accused gathering for committing murder or some other offence could not be ruled out. In the present case also such a possibility cannot be ruled out. The prosecution, therefore, has, to my mind, failed to prove that they had assembled to commit dacoity only. There is no evidence to that effect. Mere suspicion of the Police Officer because of non-explanation of accused for their presence near a shop at the odd hours would not be enough to bring home charge of preparation to commit dacoity. The appeal, therefore, deserves to be allowed. Hence, the following order. Appeal is allowed. The order of conviction and sentence imposed on the appellant is set aside. He stands acquitted of the offence punishable under Section 399 of I.P.Code. He be set at liberty forthwith, if not required in any other case.