^ p^v ^ 's^ ^.("^' HI6H COURTOF CHHATnSGARH AT BILASPUR (SB: Hon'ble Mr. T.P.SMARMA. J_) Criininal ADpeal No.784 of 2008 Raju Khanjar and others Vs. State of Chhattisgarh JUbGMENT Post for 3/8/2009 Sd/- T.P. Sharma Judge ^p^_ HIGH COURT OF CHHATTESGARH AT BILASPUR Gn'minal ADpeal No.784 of 2008 APPELLANTS (InJail) RESPONbENT 1. Raju Khanjar S/o Jayram bharikar, Aged about 28 years, R/o San9ram Chowk, Camp-1, Bhilai, Police Station- Chhawani, District-burg (C.G.) 2. Chhotu ©Krishna, s/o Jangbahadur Rajput, Aged about 25 years, R/o Sharda Paara, Camp-1, Bhilai, Police Station-Chhawani, bistrict-burg (C.G.) 3. Pitambar S/o Vrindavan Sahu, Aged about 22 years, R/o Balaji Nagar, Police Station Chhawani. Bhiali, District-burg \C.G.) 4. Sattyan Madhwan, S/o b.H.Madhwan, Aged about 36 years, R/o Quarter No.2P, Sec.-6, Police Station-Kotwali, bistrict-Durg (C.&.) Versus State of Chhattisgarh Through Station HousePalari, District Raipur (CG) (Appeal under Section 374 of the Code of Criminal Procedure, 1973) (SB: Hon'ble Mr. T.P. Sharma. J.) Present: Mrs.Fouzia Mirza, counsei for the appellants. Mr.Akhil Mishra, Dy.Oovt.Advocate for the State/respondent. JUbGMENT (belivered on 3rd August, 2009) Thisappeal is directed against the judgment of conviction and order of sentence dated 28.6.2008 passed by the Additional Sessions Judge, Bhatapara, Gamp Court, Baloda Bazar, in Sessions Trial No.14/2007 whereby and whereunder learned Additional Sessions Judge after holdin9 the appellants guilty for the offence punishable under Sections 399 and 402of the Indian Penal Code each of them sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- and rigorous imprisonment for 5 yearsand ^' to a fineof Rs.l000/-/in default of payment of fine to further undergo rigorous imprisonment for 6 months on each count. 2. Judgment of conviction and order of sentence is challenged on the ground thatwithout there being any proof for preparation to commit dacoity and that too by five or more persons, the Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality. 3 Case of the prosecution in brief is that the present accused/appellants and one absconding accused are residents of Bhilai, bistrict Durg. On the dQte ofincident i.e. 29.4.2005 Station House Officer of thepolice station Palari, bistrict Raipur came into knowledge that present appellants and one absconding Jaideep were present in the vacant house of Daulat Chandrakar at Palari in suspicious condition and planning for committing dacoity. Investigating officer dong with police officials with arms proceeded for the spot. Police force surrounded the house of Daulat Chandrakar. They heard the sound of persons present inside the house. They were speaking with each other that they will commit dacoity in the house of Heera Seth and they are directing their persons as to how they will commit dacoityand who will present at which place. They wereplanning to commit dacoity about 12 mid night. Raid party challenged the persons present inside the house, then two persons fledaway from the house and three accused persons namely Raju Khanjar, Chhotu @ Krishna and Pitambar were found in the house. They were caught red handed along with arms and ammunition. behati nalishi was recorded on the spot vide Ex.P/6. Finally/F.I.R. was lodged vide Ex.P/5. Accused Raju was in possession of one country-made pistol/one knife and two cartridges which were recovered from himvide Ex.P/7/ Accused Chhotu @ Krishna was having one country-madepistol and two cartridges which were recovered from him vide Ex.P/8 and accused Pitambar wasalso in possession of one country-made pistol and threecartridges which was recovered from him vide Ex.P/9. Sketch of arms and cartridges were prepared vide Exs.P/10 to 12. Accused were arrested on the spot vide Exs.P/13 to 15. Spot map was prepared vide Ex.P/16. ^ 4. After recording the statements of thewitnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short 'Code'), seized firearms were sent for examination and same was found in working condition and cartridges were ative vide Exs.P/2 and P/4. Sanction was obtained from the District Magistrate vide Ex.P/lC, After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Baloda Bazar who in turn committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge/ Bhatapara received the same on transfer for trial. 5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 11 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearmg against them and innocency and false implication is pleaded. 6. Learned Additional Sessions Judge after affording an opportunity of hearing to the parties, convicted and sentenced the appellants as aforementioned. 7. I have heard Mrs.Fouzia Mirza, counsel for the appellantsand Mr.Akhil Mishra, beputy Government Advocate for the State/respondent and perused thejudgment impugned and record of the court below. 8. Learned counsel for the appellants vehemently argued that in order to convict the appellants for the offence punishable under Section 399 of the Indian Penal Code, the prosecution is required to prove preparation of dacoity beyondall shadow of doubt and for conviction under Section 402 of the Indian Penal Code, the prosecution is required to prove that persons present were dacoit and number of persons were five or more. Only presence of persons present in place with arms and explosive substance is not sufficient to convict the persons under Sections 399 and 402 of the Indian Penal Code. Learned counsel further argued that statements of the witnesses donot inspire confidence and trustworthy and independent witnesses though they were kotwarsof the village i.e.Bhagwan bas (PW-10) and Vijay bas (PW-11) were within the control of pplice officers but have not supported the case of the prosecution. Only police officials who are interested in outcome of the case has !»»' ^.v deposed against the present appetlants and their evidence are full of ContradictJon, omission and discrepancies. They have not supported the evidence of each other. From the perusal of the statements of the prosecution witnesses it is difficult to hold that who chased the two persons who fled away from the spot when all the persons of raid party were present on the spot within very close distance, then how it was possible that sorne witnesses heard the sound of the accused persons and some had not heard the sound. The evidence of the prosecution that pitch of sound of the accused persons were so high that they have heard the sound from the outside of the room that too for the commission of dacoity at 12 mid night are improbable, impossible and not reliable. Learned counsel further argued that dehati nalishi was recorded on the spot beQring 0/2005. Seizure of the articles which were made on the spot bears Crime No. 124/2005 shows concealing and tempering the documents with a view to falsely implicate the appellants in the alleged commission of offence. Atleged accused Jaideep is still absconding. The prosecution witnesses have notdeposed that they knows the absconding appellant Jaideep and the person who absconded from the spot alleged Sattyan Madhwan. No identification parade has been conducted by the prosecution for identification of Sattyan Madhwan. On the basjs of alleged oral admission of the co-accused that the persons who fled away from the spot were Sattyan Madhwan and Jaideep is not admissible In the evidence. Learned counsel also argued that according to the case of the prosecution the present appellants were wanted in one Mahadev Murder Case and with a view to create pressure and strengthening to Mahadev Murder Case thepolice officers have falsely implicated the present appellants in the crime in question. Learned counsel also argued that according to the case of the prosecution persons were present at Palari there were so many houses in the vicinity and so many persons were present but police has not examinedany independent witnesses in support of the case of the prosecution. Even Investigatin9 Officer P.S.Sen (PW-7) has admitted in para-23 and 24 of his evidence that he has inquired the matter from Devnath and Tekram but he has not recorded their statements. He has also not recorded the statement of wife of R.LTekam. This high handed investigation shows that the police party has decided to implicate theappellants in false accusation. 9. Learned counsel placed reliance in the matter of Suleman and another v. State of Delhi through Secretary, in which the Apex Court has held that in the absence of cogent evidence for preparation to commit dacoity, conviction and sentence under Sections 399 and 402 of the Indian Penal Code is not sustainable. Learned counsel further placed reliance in the matter of State of U.P.y. Punni <& Ors.2 in which the Apex Court has held thatin the absence of non-examination of 5.0. and 1.0. adjoining grove holder are fatal to prosecution. In case of offence punishable under Section 399 of the Indian Penal Code, in the absence of any resistance or struggle by the alleged accused. previous enmity between two accused who were found together makes their participation of the persons for the commission of preparation of dacoity is improbable. Learned counset also placed reliance in the matter of Chaturi Yadav and others v. State of Bihar in which the Apex Court has held that the presence of 8 persons in the school compound is not sufficient to prove preparation of dacoity. There may be possibility of commission of someother offence. Learned counsel also placed reliance in the matter of Chhotey & Ors. v. State ofUP.in Which the High Court of Allahabad has held that when the raid party was at the distance from spot then it isdifft'cutt to hear the sound and the appellants did not retaliate by their fire-arms to avoid arrest was circumstance to create doubt on the story of prosecution. Learned counsel also placed reliance in the matter of Sukhlal Banshi Lodhi dnd another v. State of M.P.5 in which the High Court of Madhya Pradesh has held that merely assembly or presence of the persons does not constt'tute the offence of preparation to commit dacoity punishable under Section 399 of the Indian Penal Code. Learned counsel also placed reliance in the matter of Murarilal v. State of M.P6 in which the High Court of Madhya Pradesh has held that mentioning of crime number in different seizure memo without registering of the offence makes the story doubtful. Learned counsel also placed reliance in the matter of Chhagan and others v. 1AIR 1999 SC 1707 2AIR 2008 SC 932 3(1979)3SCC 430 42004 (1) Crimes 671 51998(1) M.P.LJ.288 6Weekly Notes 1985 (472) IPN^ State of M.P.7 in whieh the High Court of Madhya Pradesh has held that the only proof of theassembly of five or more persons is not sufficient to convict the appellants under Section 399 of the Indian Penal Code, 10. On the other hand, learned counsel for the State/respondent supported the judgment impugned and argued that the prosecution has proved its case beyond all shadow of doubt. The presence of the accused persons are residents of Bhilai, District Durg, far away from Bhilai were found at Palari in one deserted house with arms and ammunition. Though independent witnesses have not supported the case of the prosecution but police officials are also natural witnesses who havesupported the case of the prosecution and their evidence cannot be discarded only on the ground that they are interested witnesses and they are interested in outcome of the case. After receiving information from the informant/police officiats constituted raid party. They heard the sound of the accused persons present inside the room within short distance. Out of five persons two accused persons fled away. The persons who fledaway and the persons who were present inside the room have not tried to attack upon the police partY because they were surrounded by the police force and police force has already challenged them. This is not a case where accused personsWhere having an opportunity to flee away from the spot. Persons inside the room surrounded by the wall, therefore, only escaping of the accused persons from the door was possible which was checked by thepolice officials though at the timeof such checking two persons fted away whom two police officials chased but finally two persons escaped from the spot. Learned counsel further argued that the prosecution has proved the fact that three accused caught hold on the spot and two persons escaped from the spot were makin9 preparation to commit dacot'ty. Conviction and sentence for the offence punishable under Sections 399 and 402 of the Indian Penal Code is sustainable under the law. Learned counsel placed reliance in the matter of Chandrasekhar Sureshchandra Bhatt and others v. State of Maharashtra8 in which the Apex Court has held that the marginal variations between the statement of the prosecution witness recorded under Section 161 CrPC and the testimony given in court, cannot be said to be 7Weekly Notes 1978 134 82000(10) SCC 582 s^ improvements made with any sinister motive. Preparation to commit dacoity, dialogue between two accused, one reminding the other of the sequence to be followed in the operation i.e. first to loot the belongings and then to abduct the victim. Dialogue overheard by a police officer who was then in guise of a tea vendor is not an artificial introduction of a dialogue. Reliance can be placed on evidence of the police officer for conviction. 11. In order to appreciate the contentions of the parties, I have examined the evjdence available on record. As regard the presence of the absconding accused Jaideep and Sattyan Madhwan is concerned, witnesses examined on behalf of the prosecution have specificalty deposed that previously they were not knowing to the accused persons but they came to know on the basis of statements of the accused persons when two persons fledaway fromthe spot. PW-7 Sub Inspector P.S.Sen has deposed that when he went near room within close distance then he heard that persons present inside weretalking with each othersand they are talking that one person was directing Chhhotu that he will present in front and he wilt watch and Pitambar will present In other side to watch and obstruct. Raju, Sattyan Madhwan and Jaideepwitl enter in the house of Heera Seth and in case of any emergency all persons will enter in the house. This fact hasalso been mentioned in Dehati Nalishi (Ex.P/6) written on the spot. 12. Admittedly, according to case of prosecution two persons fled away from thespot.No identification parade was conducted relating to the accused Sattyan Madhwan who was subsequently arrested. The prosecution hos not adduced any material to show on what basis they have arrested the accused Sattyan Madhwan except alleged oral statement of other co-accused. Conduction of test identification parade is not sine qua non for the identification of the accused and if the accused otherwise identified. But the prpsecution is required to prove the identity of the accused by other cogent evidence. 13. In the present case, the prosecution witnesses have not deposed that they have identified two personswho fted away from the spot and they were Sattyan Madhwanand Jaideep. There was no basis for subsequent arrest of Sattyan Madhwan and mentioning the name of Jaideep as co-accused in this h" case. In the absence of legal evidence, the complicity of the alleged Sattyan Madhwan and Jaideep is not established in the present case. Learned Additional Sessions Judge has not considered the material aspect pf the identity of the accused Sattyan Madhwan and Jaideep and therefore/conviction of Sattyan Madhwan for the commission of the Qforesaid offence is not sustainable under the law. 14. As regards the complicity of the accused/appellants Raju Khanjar, Chhotu @ Krishna and Pitambar is concerned and presence of five persons at the time of such commission to meet the requirement of the offence of preparation to comrnit dacoity is concerned. independent witnesseskotwar Bhagwan bas (PW- 10) and kotwar Vijay bas (PW-11) have not supported the case of the prosecution. They have simply admitted their signatureson the documents. Only the case of the prosecution has been supported by the police officials. Head constable Ashok Tiwan' (PW-1), Jeevan Lal (PW-2), Itwari Ram Sahu (PW-3), binesh Kumar Kurre (PW-4), Sub Inspector P.5.5en (PW-7) who has conducted the alleged raid and Ghanshyam (PW-8) head constable have specifically deposed in their evidence that they were members of the raid party and they surrounded the house of Doulat Chandrakar where five persons were present. At the time of entering into the said premise two persons fled away from the spot whom they chased but did not succeed to catch hold or arrest. Three persons namely Raju khanjar, Chhotu ©Krishna and Pitambar were found inside the house of Dautatram Chandrakar. Seizure were mQde and they were arrested. F.I.R. was lodged by P.S.Sen (PW-7) vide Ex.P/5 on the basis of dehati natishi (Ex.P/6) recorded on the spot. befence has cross-examined these witnesses in detail but had not been able to elicit anything in their cross-examination to show that these three accused persons were not present in the house of Daulat Chandrakar at the time of alteged raid, inter alia, defence has suggested Ashok Tiwari (PW-1) in para-15 and P.S.Sen (PW-7) in para-28 that theaforesaid three accused persons were present in the house and they were taking their meals, though they are police officials but their statements cannot be discarded only on the ground that they are police officials and they are interested in the outcome of thecase. E 15. While dealing with the question i.e. evidentiary value of the statements of Potice Officers, the Apex Court has held in the case of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra9, that testimony of police officials are not liable to be discarded merely because they are police officials. However, their evidence should be carefully scrutinized and independently appreciated. The Apex Court further held that witnesses being police officers do not by itself create a doubt about their creditworthiness if non-examination of Panch witnesses is explained satisfactorily. Para 5 of the said judgment reads as under:- "Indeed all the 5 prosecution witness who have been examined in support of searchand seizure were membersof the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials/who are interested in the outcome of the result of the case, needs to be carefutly scrutinised and independently appreciQted. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully andcn'tically analysed the evidence of all the 5 police officials. There is nothin9 on the record to show that anyone of them was hostile tobe appeltant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, letatone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country- made revolver from the conscious possessionof the appellant has been established by the prosecution beyond any reasonable doubt. The exptanation given by the prosecution, for the non-examination of the two panch witnesses, which is supported by the report Ext. 24 filed by PW 4 PI Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent panchas at the time of search and seizure and they were so joined. They were atso (1996) 2 SCC 589 10 cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore they could not be examined at the trial. In the face of the facts stated in report Ext. 24,the correctness of which has remained virtually unchallenged during the cross-examination of PW 4, the non-examination of the two panchas cannot be said to be on account of any oblique reason. Their non-production at the trail thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed onaccount of the fact that they had left the addresses furnished by them at the time of search and their whereabouts could not be traced despite diligent efforts made in that behalf. We, therefore, do not find any reason to doubt thecorrectness of the prosecution version relating to the apprehensionof the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country-made revolver andcartridges for which he could produce no licence or authority because of the non-examination of the panch witnesses. We find that the evidence of PW 1 to PW 5 is reliable, cogent and trustworthy." 16. Further, in the matter of P.P. Beeran v. State of Kerala it has been held by the Apex Court that reliance can be placed on the uncorroborated evidence of the Sub Inspector of Police. 17. Statements of the aforesaid witnesses relating to presence of three accused persons are supported by Sub Inspector P.S.Sen (PW-7) Gind also sypported the statements of eachother, dehati nalishi (Ex.P/6), F.I.R, (Ex.P/5). arrest memos (Exs.P/13 to P/15)and suggestion given by the defence that they were not only arrested to them but they were produced for remand before the Judicial Magistrate First Class, Baloda Bazaar on 30.4.2005, inspire confidence trustworthy relating to presence of these three accused persons at the time of the alleged raid inside thehouse of baulatram Chandrakar. The aforesaid police officials have also deposed that two persons fled away from the spot where theychased but did not succeed to catch hold or arrest. 10 AIR 2001 SC 2420 11 18. The prosecution has not proved that the persons fled away were Sattyan Madhwan and Jaideep, but it is clear from the evidence of the afQresaid witnesses that two persons fled away from the house of Daulatram Chandrakar and three persons were found inside the house shows that at the time of raid five persons were present and out of five persons three persons were arrested and two persons were fled away from the spot. 19. In order to establish the complicity of the accused/appellants in the crime in question, I have examined the prosecution witnesses. Sub Inspector P.S.Sen (PW-7) investigating officer has specifically deposed in his evidence thaton 29.4.2005 he received information fromthe informant that in the house of baulatram Chandrakar some suspicious persons are present, then he conducted raid in thesaid housealong with police force. Raid partywas armed with riffles. He has deposed that he heard the sound coming from the house that some persons is telling "^t^ ^ ^WT ^r ^TFT^ "'?^TT crm cf^ ^?TT| Rdi^i^ ^T ^ ^^P' ^^TT ^t^ STT^ift 3TP? cTT ^(^T | ^ '?T^ WSFT vj1-4\jTl4 ^Nil^d ^ 'ER ^rTt|3N ^N ^ ^TH ^ t^^ ^ ^T^ ^TTT T^f^TTST 3^? W ^TT^t", then when they opened the door and went inside the house, at that time two persons fled away and then he directed the police constables Ghanshyam and Itwari Ram Sahu to chase them. Three accused persons subsequently found inside the house then he alarmed them that he may shoot. He has also deposed that appeltant Raju Khanjar was in possession of country-made pistol, two cartridges and one knife, Chhotu ©Krishnawas in possession of country-made pistol and two cartridges and Pitambar was in possession of country-made pistot and three cartridges which were seized on the spot from the aforesaid accusedvide Exs.P/7 to P/9. He has also deposed that he has prepared the picture/figure of pistol and cartridges which were recovered from the aforesaid three