1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 223 OF 1997 1 Ratan Nivrutti Bhosale @ Jyoti Chand Bhosale, age: 34 years; 2 Suresh Sitaram Kale, age: 30 years; Both R/o Maktapur Shivar. 3 Kalyan Bhanudas Chavan, age: 25 years, R/o Pichadgaon, at present Borivali, Mumbai. 4 Mirilal Hiraman Kale, age: 20 years, R/o Panaswadi. 5 Navnath Avchitya Kale, age: 19 years, R/o Dhake Vasti, Shevgaon. Appellants Versus State of Maharashtra Respondent Smt.S.S.Jadhav, advocate for appellants. Shri V.H.Dighe, A.P.P. For Respondent-State. CORAM: R.M.BORDE, J. DATE : 12 th June, 2009. ORAL JUDGMENT: 2 1 Appellants – original accused nos.1 to 5 have approached this Court raising challenge to the judgment and order dated 07.07.1997, passed by 2nd Additional Sessions Judge, Shrirampur, in Sessions Case No. 11 of 1997, whereby accused – appellants have been held guilty for the commission of offence punishable under Section 402 of I.P.C. and they have been sentenced to suffer rigorous imprisonment for one year each and to pay fine of Rs.500/-, each, in default, to suffer rigorous imprisonment for three months, each. 2 Accused – appellants were prosecuted for commission of offence punishable under Section 399 of I.P.C. for having made preparation for commission of offence of dacoity. The offence is alleged to have taken place on 08.11.1996 when accused were apprehended at about 3.00 a. m. within the boundaries of village Bhanashivara near Chari No.6. It is the allegation of the prosecution that there was an incident of dacoity and murder at village Kukana on 05.11.1996. The villagers of nearby villages had formed `Gram Suraksha Dal’ and they were assisting police officials in patrolling during night time. It is the contention of prosecution that on the relevant day, members of Gram Suraksha Dal, along with police officials, were conducting patrolling and were proceeding from Newasa phata to Kukana road in their respective vehicles. When they reached near boundary of village Bhanashivara, they found accused persons near Chari No.6 in suspicious circumstances. They were trying to hide themselves. The police party along with members of Gram Suraksha Dal rounded them up and on effecting their arrest, they were brought to Police Station. It is further allegation of the 3 prosecution that accused persons were armed with weapons. Police conducted seizure panchanama and took possession of the arms at the spot itself. After completing investigation, police presented charge sheet against the accused. The case, being triable by the Court of Sessions, was committed and tried before the Court of 2nd Additional Sessions Judge at Shrirampur. Accused pleaded not guilty to the charge and claimed to be tried. Their defence was of total denial. According to them, police have brought them from their respective houses, which were adjacent to the spot and they have been falsely implicated in the crime. They had no intention to commit dacoity or any other crime as alleged by the prosecution. 3 In order to bring home guilt of the accused, prosecution examined as many as seven witnesses. After recording evidence of the prosecution witnesses and statements of the accused, learned Judge of the trial Court, reached the conclusion that the prosecution has established charge in respect of commission of offence punishable under Section 402 of I.P.C. against accused and on conviction, accused were sentenced for a term, as noted above. 4 With the assistance of learned Counsel appearing for appellants and learned Assistant Public Prosecutor for Respondent-State, I have scanned the prosecution evidence. That the charge initially framed by the trial Court was in respect of commission of offence punishable under Section 399 of I.P.C. Section 399 of I.P.C. provides penalty for making preparation for committing dacoity, whereas Section 402 of the I.P.C. prescribes penalty for being one amongst five or more persons 4 assembled for the purpose of committing dacoity. The trial Court has recorded a finding that the prosecution has not established the case in respect of making preparation for commission of offence of dacoity by the accused. However, it has been found by the trial Court that accused persons are members of the group who had assembled for the purpose of committing dacoity. 5 So far as evidence of P.W.1 Sunil Garje is concerned, it has been stated by the witness that he was a member of Gram Suraksha Dal of village Kukana. The witness has deposed about the commission of offence at village Kukana in respect of dacoity and murder, a few days prior to the incident in question. It has been deposed by the witness that accused were found in suspicious circumstances near Chari No.6 and they were armed with weapons. It has been admitted by the witness in his cross examination that accused persons have their agricultural land and vasti, so also residential huts near the Chari. It has also come in the evidence of witness that the spot where accused were found is near Ashoknagar, which is a part of village Bhanashivara. Ashoknagar locality is consisting of 150 houses. The witness has also admitted that there is a Ashram Shala at about 1 ½ Kms from Ashoknagar locality. One of the witness i. e. P.W.7 has also, while giving location of the spot, has stated that the Chari in question, where accused were found, is hardly at a distance of 1 Km. from S.T. Stand. 6 It does appear from the evidence of prosecution witnesses that the spot where accused were found allegedly moving in suspicious circumstances, was not far away from the residential locality. It has to be 5 scanned whether the prosecution has proved that the accused had an intention to commit offence of dacoity so as to bring the case within contemplation of Section 402 of the I.P.C. On perusal of the evidence of prosecution witness no.1 Sunil Garje, it cannot be concluded that accused were having any intention to commit offence of dacoity. The case put up by prosecution in respect of accused having arms in their possession while they were accosted, also does not appear to have been substantiated by the prosecution. P.W.2 Mahadeo Pawar, who is pancha witness in respect of seizure of arms from the accused, is not supporting the prosecution case. The factum of accused possessing arms while they were arrested, thus, has not been proved by the prosecution. Apart from this, P.W.3 Isaq Inamdar as well as P.W.4 Babasaheb Jadhav, who were stated to be along with police party while accused were apprehended, are not supporting the prosecution case. P.W.3 Isaq Inamdar claims to be the member of Kukana Gram Suraksha Dal, however, he has not supported the prosecution case in respect of accused having been apprehended alongside Chari No.6 at village Bhanashivara on the relevant day. P.W.4 Babasaheb Jadhav has stated that he is not the member of Gram Suraksha Dal nor he was along with the police party when accused were apprehended. 7 What remains for consideration is the evidence of police officials who have naturally supported the prosecution version. However, even after perusal of evidence of P.W. Nos.5, 6 and 7, it does not transpire that the accused had an intention to commit dacoity or any other offence. The case put up by the prosecution in respect of accused possessing arms while they were arrested, has not been substantiated. It 6 also transpires from the testimony of witnesses that the spot where accused were apprehended is not far away from vasti. P.W.1 Sunil Garje has, in terms, admitted that accused were having their residential huts as well as agricultural lands near Chari No.6, where accused were found. In these circumstances, therefore, it cannot be said that accused had any intention to commit offence of dacoity and they had assembled for said purpose. 8 Learned Counsel for the appellants has contended that even if assuming, without admitting, that there was assembly of persons armed with weapons, that itself will not give rise to the conclusion that the assembly of persons was gathered for commission of offence of dacoity. Reliance is placed on the judgment in the case of Chaturi Yadav and others Vs. State of Bihar, reported in 1979 Cri.L.J. 1090. Accused in the reported judgment were found in the school premises, which was quite close to the market, at 1.00 a.m. and some of them were armed with guns and some had cartridges and few other accused ran away. The Court, while dealing with the matter has observed that: “The mere fact that these persons were found at 1 a.m. did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated.” 7 9 The prosecution, in order to bring home the charge under Section 402 I.P.C., has also further to establish that the assembly of persons is for the purpose of committing offence of dacoity. In the instant matter, there are no such circumstances brought on record by the prosecution to come to the conclusion that the alleged assembly of the accused was for the purpose of committing dacoity. In these circumstances, therefore, the charge under Section 402 of I.P.C., is not sustainable. 10 For the reasons stated above, appeal deserves to be allowed and same is accordingly allowed. The order of conviction and sentence imposed by 2 nd Additional Sessions Judge, Shrirampur on 07.07.1997 in Sessions Case No.11 of 1997 is quashed and set aside and accused – appellants are acquitted of the charge levelled against them. Bail bonds of the accused – appellants stand cancelled. Fine, if deposited by appellants, be refunded to them. (R.M.BORDE) JUDGE ******* adb/criappeal22397