1. This Criminal Appeal has been preferred against judgment and order dated 15.10.1982 passed by learned Special Judge (Dacoity Affected Area), Agra in Session Trial No. 70 of 1982 under Section 399, 402 of Indian Penal Code (hereinafter referred as IPC) and Section 25 of Arms Act, Police Station Fatehpur Sikri, Agra, whereby accused-appellants Jindal Singh, Doonger Singh and Batohi @ Batera have been convicted under sections 399, 402 of IPC and Section 25 of Arms Act and they were sentenced to three years rigorous imprisonment under Section 399 of IPC, three years rigorous imprisonment under section 402 of IPC and one year rigorous imprisonment under Section 25 of Arms Act. All the sentences were directed to run concurrently.
2. During pendency of this appeal, appellant no.1 Jindel Singh and appellant no.2 Doonger Singh have expired and their appeal was abated. Thus, now the instant appeal is confined only in respect of appellant no.3 Batohi.
3. Prosecution version in brief is that on 11.05.1982 while a police party, comprising PW-1 S.I. Kailash Chandra Verma and PW-2 Paras Ram Yadav and some other police officials of Police Station Fatehpur Sikri, was patrolling in the area and at around 05.00 PM when they reached near the grove of one Kewal Kishan near village Undera, they received an secret information that in the night a gang of dacoits would assemble at Dharmshala of Shivlal for committing dacoity in village Undera. The police party reached there and concealed themselves near said Dharmshala. At around 11:45 PM four bandits came there and sat in the Dharmshala. The police party heard their conversation and they were talking that now their companions would join them and thereafter they would commit dacoity at village Undera. After about 15 minutes, two more persons reached there and joined the said bandits and that they all were talking that now they must go for committing dacoity. As the miscreants started going for committing dacoity, they were challenged by the police party and three of them were apprehended at about 12:10 AM but remaining three succeeded in running away. Identity of the bandits, who were apprehended, were revealed as Jindel Singh, Doonger Singh and Batohi @ Batera. One gun of 12 bore and some cartridges were recovered from Jindel Singh, one country made pistol along with two cartridges were recovered from Doonger Singh and one country made pistol of 12 bore was recovered from Batohi. All these weapons were sealed at the spot and were taken into police possession vide recovery memo exhibit Ka-1 and thereafter the case was got lodged at the police station vide first information report exhibit Ka-2.
4. During investigation, the Investigating Officer prepared site plan of spot vide exhibit Ka-3 and recorded statements of witnesses and after completion of investigation, all the three appellants were charge sheeted for the offence under Sections 399, 402 of IPC and Section 25 of Arms Act.
5. Trial court framed charges under Sections 399, 402 of IPC and Section 25 of Arms Act against the accused-appellant. In order to bring home guilt of the accused persons, prosecution has examined three witnesses.
6. Accused-appellant and co-accused persons were examined under Section 313 Cr.P.C., wherein they have denied prosecution version and claimed that they were falsely implicated. In defence evidence, one Sriram was examined as DW-1.
7. After hearing and analysing evidence on record, accused-appellant and co-appellants (since deceased) were convicted under Sections 399, 402 of IPC and Section 25 of Arms Act and sentenced as stated in opening paragraph of this judgment.
8. Being aggrieved by the impugned judgment and order, accused-appellant has preferred this criminal appeal.
9. Heard Ms. Kanchan Chaudhary, learned Amicus Curiae, Sri Amit Kumar Singh, learned A.G.A. for the State and perused the record.
10. In evidence, PW-1 S.I. Kailash Chandra Verma has inter-alia stated that on 12.05.1982 he along with other police officials was going for checking of vehicles and when they reached near Noorpur Canal Bridge, they received a secret information that 5-6 bandits are likely to assemble in Dharmshala of Shivlal in the night and they would commit dacoity in village Undera. On this information, they reached near said Dharmshala and concealed themselves around that place. At around 11:45 PM four bandits came there and sat in the Dharmshala and started talking that their remaining companion have not come so far. After about 15 minutes they were joined by two more bandits and they all started talking that now they must go to commit dacoity and as they started going, the PW-1 and other police officials challenged them and thereafter three of the miscreants, including the appellant Batohi were apprehended at the spot while remaining three have fled away. A country made pistol of 12 bore was recovered from the appellant Batohi.
11. PW-2 Paras Ram Yadav, who was Station Officer of Police Station Fatehpur Seekri, has also reiterated same version and deposed about apprehension of appellant in the similar manner as stated by PW-1.
12. PW-3 S.I. Bhagwan Singh, has conducted investigation.
13. DW-1 Sriram has stated that all the three accused persons are residents of his village and that on 11.05.1982 police have apprehended them from the village at instance of one Ramcharan Pandit, as there was some dispute between appellant and Ramcharan Pandit over the issue of canal water.
14. In this case, Accused-appellant Batohi has been convicted under Section 399, 402 of IPC and Section 25 of Arms Act. For better understanding, Section 399 and 402 IPC are reproduced herein as under:
"399. Whoever makes any preparation for committing dacoity, shall be punished with imprisonment for a term which may extend to ten years, and shall also be liable to fine.'' ''402. 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."
Thus, in order to prove the charge under Section 399/402 IPC, it is necessary for the prosecution to prove that five or more persons have assembled with the intention to commit dacoity, which is punishable under Section 402 of IPC, whereas for proving the offence under Section 399 of IPC, it is necessary for the prosecution to prove that some additional steps have been taken in the course of preparation to commit dacoity.
15. It may stated that as per prosecution version the police officials have reached at the alleged spot after receipt of a secret information but despite that there is no independent witness of alleged incident. There is no convincing evidence that they have tried to join some independent witness. Though there is no such law that testimony of a police or official witness necessarily requires corroboration by independent witness, however, when the alleged raid was conducted after getting a previous information, it is desirable that efforts must have been made to join some independent witness. Further, as per prosecution version, the police party reached at the alleged Dharamshala and concealed themselves around that place and after that appellant Batohi and other accused persons came in the Dharamshala and by sitting inside a room of Dharamshala, they started talking about plan of committing dacoity and this conversation was heard by the members of police party. In this connection, it may be stated that it is not natural that the miscreants would have talked in such loud voice that it could be heard by members of police party, who were outside of room. PW-1 S.I. Kailash chandra Verma and PW-2 S.O. Paras Ram have not specified that how they were able to heard the alleged conversation of said bandits. It appears thoroughly improbable that police officials could have heard the conversation of said miscreants, who were sitting inside the room or that the said miscreants would be talking in such loud voice that now they would commit dacoity. Here it would be relevant to mention that even as per prosecution, what the police hears is that the said bandits have said that now they must go for committing dacoity. Mere this bald statement hardly fulfils the ingredients of offence under Sections 399 and 402 of IPC.
16. Further as per prosecution version three miscreants have succeeded in running away from spot. It appears from record that there were about 10-11 police officials in the police party but it has not been specified that despite there being sufficient number of police officials present at the spot, how the three accused managed to escape from room of Dharamshala. It is a question, which the prosecution has failed to give answer and neither any step has been taken by the police to apprehend the remaining accused nor the police constables, who chased the accused were examined so as to establish the charge under section 402 i.e. assembly of five persons to commit dacoity. Even during investigation, identity of said three persons could not be established. Here it would be pertinent to mention that in the case of Shridhar Koeri Vs. State of Bihar, 2001 (43) ACC 5, Hon'ble Apex Court has held that the mere fact that the accused was arrested on the spot and some articles including fire arms were recovered from his possession would not be sufficient to prove the charge that he had assembled for making preparation for commission of dacoity.
17. Another point is that alleged country made pistol, recovered from accused-appellant Batohi or the pistols recovered from co-accused persons, were not sent to FSL for examination. Thus, there is no evidence that alleged country made pistol shown recovered from accused-appellant was in working order. In case of State of Punjab Vs. Jagga Singh, AIR 1998 SC 3113, Hon'ble Supreme Court observed as under:
"Though the evidence of PW 1, HC Baldev Singh and PW 3, Basant Singh establishes that the respondent was found in possession of one 12 bore DBBL gun and found live cartridges, there is no satisfactory evidence to show that the said gun and the cartridges were sent for examination by the Central Forensic Scientific Laboratory. There is no report from the Forensic Scientific Laboratory nor any other evidence to prove that the said gun was in a working condition or that the said cartridges were live cartridges..... Therefore, in absence of any evidence to show that the respondent was found in possession of one .12 bore DBBL gun in a working condition and four live cartridges, the respondent cannot be convicted."
Thus, the instant case is also affected on the ground that alleged country made pistol recovered from accused-appellant has not been sent to FSL and there is no such report that the said pistol was in working order.
18. At this juncture it may be observed that prosecution version is that the miscreants have uttered that now they must go for committing dacoity and as they started going from the room of Dharamshala, the police officials apprehended three of them, including the appellant. There is absolutely no evidence that the appellant or any of his companion has offered any resistance. In the case of State of UP Vs. Punni, 2008 Cr.L.J 1028 (SC), the dacoits were arrested without any resistance or struggle and contents in the FIR that police had received information from an informer was not supported by the sub-Inspector and the Hon'ble Apex court held that the accused was entitled for acquittal. In the instant case too there is nothing to show that alleged miscreants have offered any resistance.
19. Further, as per prosecution version, police party has left police station on 11.05.1982 at 09.15 PM for patrolling but neither the G.D. entry of departure of said police officials has been placed on record nor proved.
20. Another aspect involved in this case is that as per prosecution version entire raid proceedings were conducted in supervision of Station Officer Parasram and case was also lodged by him but investigation has been conducted by P.W.-3 S.I. Bhagwan Singh, who was subordinate of the complainant of case. It is apparent that if investigation has been conducted by complainant's subordinate, it would create doubt in authenticity of investigation.
21. Considering the entire evidence it appears that prosecution version lacks genuineness and authenticity. The prosecution version appears unnatural and it appears quite improbable that the said police officials have heard any such conversation of appellant and co-accused persons that they were saying that they would commit dacoity. Besides this, as stated above, neither general diary entry of departure of said police officials has been proved nor there is any expert report that alleged recovered weapons were in working order. Apart from the aforesaid, investigation was conducted by police personnel, who was subordinate to complainant. Considering entire facts and evidence, prosecution version appears doubtful and thus, accused-appellant Batohi deserves benefit of doubt.
22. In view of above, the conviction and sentence of accused-appellant Batohi under Sections 399 and 402 of IPC and Section 25 of Arms Act, recorded by trial court, is set aside and he is acquitted of the charges levelled against him. The appellant Batohi is on bail and thus, no further order is required.
23. Appeal is accordingly, allowed.
24. This Court appreciates the assistance rendered by Ms. Kanchan Chaudhary, learned Amicus Curiae and it is directed that she will be entitled for getting Rs 5000/ from State Government as remuneration.
25. Office to transmit the record of trial Court as well as copy of the judgement to the Court below.
Dated: 27.01.2021 Mohit Kushwaha (Raj Beer Singh, J.)