Singha vs The State

Man Mohan Singh Gujral, J.—Singha son of Kalu, Bhondu, son of Sarwan Bhalla, son of Sheo Nath, Rupa son of Kalu and Chiranji Lal stand convicted under sections 399 and 402 of the Indian Penal Code by the order of the Additional Sessions Judge, Hissar, dated 12th May, 1970 whereby they were sentenced to five years'' rigorous imprisonment u/s 399 and to three years'' rigorous imprisonment u/s 402 of the Indian Penal Code each The sentences were ordered to run concurrently. It was however, directed that the sentences shall run consecutively with the sentences imposed under the Arms Act by order dated 8th May 1970 Being aggrieved all the convicts have filed separate appeals through jail. This judgment will dispose of all the appeals as they arise out of the same order.

On 10th August 1969 Ved Raj Assistant Sub-Inspector was present in Fatehabad when he received information that all the five appellants were hiding themselves in the jungle of Salamkhera for the commission of dacoity and were armed with deadly weapons He immediately sent a memo to the Police-Station Fatehabad, conveying the information which he had received Banaisi Lal Station House Officer registered a formal first information report on the basis of the ruqa received from Ved Raj Assistant Sub-Inspector and then formed a raiding party consisting of Sewa Ram and Ram Singh PWs besides other official witnesses. The party reached Badopal canal bridge in a truck and then started on foot the police party was divided into three groups and all the groups started for the spot about which information had been given by the informer. After coverring a mile and a half or so the three groups were able to encircle all the appellants who are biding themselves in bushes. The five appellants were apprehended at the spot and from their possession pistols and cartridges were recovered. From the persoeal search of Singha accused only a barchha was recovered. All the articles were taken into possession and the accused were then challaned and convicted and sentenced as above.

When examined at the trial all the appellants denied the allegations and stated that they had been falsely implicated. Bhondu accused produced Jagan Nath Sarpanch in defence to show that he had been arrested from as village by the police.

Jagan Nath has deposed that he was the Sarpanch of the village Bakshiwala and that the Sub-Inspector from Fatehabad came to their village and asked for Bhondu alias Phoola. The Sub-Inspector also informed him that Phoola was to be interrogated as he was suspected of some offence. In the presence of Jagan Nath, Phoola was sent for and was taken away by the Sub-Inspector to Fatehabad Later on Jagan Nath learnt that Phoola had been challaned in this case.

Jagan Natn did not nuke any complaint about the false implication of the accused by the police and even otherwise it is not clear from his statement that the accused was arrested on the night between (sic) and 11th August 1969 from his village. Consequently it is not possible to place any reliance on the testimony of Jagan Nath.

With regard to the arrest of the accused from the jungle in the area of village Salamkhera, we have the evidence of Sewa Ram P.W 11 and Ram Singh P.W. 1 besides the testimony of official witnesses Ved Raj and Banarsi Lal P.Ws. All the witnesses have clearly stated about the formation of the raiding party and the apprehension of the appellants from the jungle after the party had encircled them on the night between 10th and 11th August 1966. It is further in their evidence that arms and ammunition were recovered from the accused.

On behalf of the appellants it is contended that no reliance can be placed on the testimony of Sewa Ram and Ram Singh P.Ws as they were both under the influence of the police and were interested witnesses. There is no doubt that both these witnesses bad appeared in five or seven cases earlier for the prosecution. This circumstance, however, would not be sufficient for discarding their evidence entirely and would require a careful scrutiny of their testimony. Both these witnesses have been cross-examined at considerable length, but nothing has been brought out to cast a shadow on their evidence. It was pointed out that these witnesses could not tell the number of the truck or the name of the driver thereof in which they had travelled up to Badopal canal bridge. There was no occasion for these witnesses to have noted down the number of the truck or to have inquired about the name of the driver and no infirmity attaches to their testimony on this account. It was also pointed out that these witnesses could not tell as to which member of the police party searched which particular accused. In considering this aspect it will have to be kept in view that the witnesses were appearing to give evidence after a lapse of about eight months. Due to the passage of time they may have failed to have remembered as to which of the police officers had searched a particular accused. This lapse of memory on their part would cast no doubt on their veracity and would in fact show that they were truthful witnesses.

Both Sewa Ram and Ram Singh appear to be persons of substance, Sewa Ram is a gun-licensee while Ram Singh is a municipal commissioner. There is no suggestion that these witnesses had any animus against the appellants. In fact it is not even clear that the appellants were known to them earlier. There could, therefore, be no motive whatsoever for these witnesses to come forward to depose falsely against the appellants.

There also seems to be no reason to doubt the testimony of Ved Raj Assistant Sub-Inspector and Banarsi Lal Sub-Inspector regarding the arrest of the accused. The evidence of police officials cannot be rejected merely because they are members of the police force. There is no suggestion even, much less any proof, that these two police officials had any malice against the appellants or were interested in setting up a false case against them. Having regard to the evidence of the two non-official witnesses as corroborated by Ved Raj and Banarsi Lal PWs. it would be safe to conclude that the accused were arrested in the circumstances Stated by the prosecution.

On behalf of the appellants it was contended that even if the prosecution case regarding the arrest of the appellant is accepted, no case u/s 399 or 402 of the Indian Penal Code would be made out as there was nothing to indicate that the accused were present there for the purpose of committing-dacoity or had made preparation to commit dacoity.

While considering this argument reference has to be made to the scope of sections 399 and 402 of the Indian Penal Code. The latter section applies to the case of mere assembling without proof of any other preparation Section 402 contemplates a stage when the whole project still lies in the realm of design and intention without there being any intent to give a concrete shape to the intention. Whenever someone of the persons assembled advances a step further by doing some act amounting to preparation, section 399 of the Indian Penal Code is then brought into play There may be cases where assembling itself may amount to preparation Whether a case falls u/s 402 or 399 depends on the facts and circumstances of each case Before section 402 can be attracted it has to be shown that the assembly was for the purpose of committing a dacoity. In is not always easy to find out with what intention and purpose persons had assembled, as very rarely there would be direct evidence in this respect. The purpose or intention with which the crime is committed has to be deduced from the facts and circumstances of each case. Where actually no offence is committed and the purpose is to be deduced by reference to the surrounding circumstances and the conduct of the accused it would be appropriate to consider that the circumstances sought to be relied upon are consistent with the one and the only purpose namely, to commit a dacoity. If circumstances clearly point out that the assembly was for the purpose of committing a dacoity the case would be covered by section 402 of the Indian Penal Code If persons merely assemble with the object of committing a dacoity the case may be covered by section 402 but may not be covered by section 399 without there being any preparation in that direction Essential requirements of section 399 are that the accused had made some preparation and that the preparation was for the purpose of committing dacoity. As to what particular act or kind of steps would constitute preparation, to hard and fast rules can be laid down in this respect. Once the circumstances being out that the persons assembled had conceived the design of committing dacoity then any step taken with the intention or purpose of forwarding that design would justify the Court in coming to the conclusion that there had been preparation within the meaning of section 399 of the Indian Penal Code. "Preparation" in section 399 implies devising or arranging means essential for the purpose of the commission of the offence of dacoity in respect of which the determination to commit the offence exists. Any stage antencedent to such determination would ordinarily not amount to preparation.

Examining the facts of the present case in the light of the above observations, it emerges that the only circumstances found against the accused were that they had assembled in the middle of the night in a thick jungle and were carrying firearms with them. It has also been brought out that there was a dhani about 1 1/2 miles from where they had assembled and a village about two miles away. The learned trial Court has also found that all the accused belonged to different places and had come together and assembled at quite some distance from their places of residence. From these facts it may be possible to conclude that the accused had assembled together for the purpose of committing dacoity, out in the absence of evidence that the accused had made any preparation for committing dacoity it cannot be safely held that the case tell within the ambit of section 399 of the Indian Penal Code. In Karmun v. Emperor AIR 1916 Lah. 334, it was observed that a mere assembly to commit dacoity does not ordinarily amount to preparation. No doubt, in order to constitute the offence of preparation for committing dacoity is not essential for the prosecution to prove that the accused had done any avert act towards the commission of the dacoity, but circumstances have to be there to show that some act was done by the accused to get ready for the dacoity. In Karmun's case it was found that members of a gang had instruments of house-breaking in their possession and were also carrying arms for the purpose of offence and defence and had actually proceeded to a place near the scene of contemplated dacoity. In the present case, no implements of house-breaking were recovered from the accused nor were they proceeding towards the place of dacoity. On the other hand they were caught sitting in the jungle about 1 1/2 miles away from the nearest habitation. Having regard to the circumstances found against the appellants it would be safer to conclude that they had assembled for the purpose of committing dacoity but there is no room for the conclusion that they had made preparation for the commission of the dacoity. The learned trial Court has also observed that no instruments of house breaking had been found with the accused, that there was no evidence of overt act by the accused which could be called a step towards the commission of dacoity, that the accused were not found cleaning their weapons or loading them and that they had not even muffled their faces. Having made these observations, in my opinion the learned trial Court had erred in holding that the circumstantial evidence was compatible with the hypothesis of the guilt of the accused is so far as the offence u/s 399 of the Indian Penal Code is concerned.

The learned trial Court while coming to the conclusion that the case was covered by section 399 relied on State of U.P. Vs. Randhir Sri Chand and Others, Criminal Law Journal 380; AIR 1916 Lah 334 and 27 Cri LJ 604. The facts in the State of U.P. Vs. Randhir Sri Chand and Others, , were that the accused who hailed from different places and had no apparent connection with each other were caught while travelling in a tonga hired for taking them to village H close to village P and the tonga had to await their return at village H. They were found in possession of electric torches and illicit firearms and had resisted their capture by the police. Earlier than that two of the accused had been seen loitering about a house in village P. They had also not offered any explanation for travelling together armed with illicit arms and torches. In these circumstances, it was held that sections 399 and 402 were attracted. In the present case, besides having assembled with firearms in a distance place from their villages in the middle of the night there were no circumstances to show that they had made preparation for committing dacoity. The circumstances found are only consistent with their having assembled for the purpose of committing dacoity. Similarly in Karmun's case (supra), implements of house-breaking were recovered from the accused and this recovery could be said to be a step towards making preparation. In the other two cases, cited on behalf of the prosecution, the facts found were considered sufficient only for establishing a case u/s 402 and not u/s 399 of the Indian Penal Code. Considering the ratio of the decision in Karmun's case and the observations made earlier, I find that it would be safe to hold the accused guilty u/s 402 and not u/s 399 of the Indian Penal Code. I, therefore, set aside the conviction of the appellants u/s 399 of the Code. Their conviction and sentence u/s 402 of the Code is, however. maintained.

With the modification indicated above, the appeal fails and is dismissed.