Criminal Appeal (SJ) No. 19 of 1999 ~~~~~~ Against the judgment of conviction dated 16.12.1998 and order of sentence dated 18.12.1998 passed by Shri Vishwambhar Upadhyay, learned Additional Sessions Judge – 2nd, Darbhanga in Sessions Trial No. 439 of 1996. ~~~~~~ 1. Julfikar Ali @ Bhaijan @ Boss, Son of Raisy Ahmad, Resident of Village Mahesh Patty, Police Station Ujiarpur, District Samastipur at present residing at Mohalla Dharampur, Ward No. 9, District – Samastipur. 2. Lallan Mandal, Son of Nago Mandal, Resident of Village – Barhetta, Police Station – Bahadurpur, District – Darbhanga. .... .... Appellants. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance : For the Appellants : Mr. Ajay Kumar Thakur, Advocate. Mr. Ravi Ranjan, Advocate. For the Respondent : Mr. Suresh Prasad Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellants and learned counsel for the State. 2. The appellants have been convicted for the offence under Section 399 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years with a fine of Rs.250/- each and in default to undergo imprisonment for 15 days and have further been convicted for the offence under Section 402 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years with a fine of Rs.250/- each and in default to undergo imprisonment for 15 days. They have further been convicted for the offence under Section 25(1-B) of the Arms Act and sentenced to undergo rigorous imprisonment for one year with a fine of Rs.250/- each and in default to undergo imprisonment for fifteen days. They have further been convicted for the offence under Section 26(1) of the Arms Act and sentenced to undergo rigorous imprisonment for six months with a fine of Rs.250/- 2 each and in default to undergo imprisonment for fifteen days. However, it has been ordered that all the sentences shall run concurrently. 3. The prosecution case as alleged that the Officer-In-Charge of Bahadurpur Police Station got confidential information that some anti social elements are sitting in the premises of S. Wakil Ahamd Teachers Training (B.Ed.) College, Murgiya Chack (Gidarganj) are taking wine and planning to commit dacoity. The Officer-In-Charge along with the S.I. Ram Niwash Singh, P.S.I. Ranvijay Sharma and Dhananjay Kumar proceeded and reached at the place of occurrence. They challenged the persons sitting there. Thereafter all the persons fled away and raiding party chased, caught hold of two persons from the orchard located in the east and the person who were arrested disclosed their name as Julfikar Ali @ Bhaijan @ Boss and Lallan Mandal. From their possession a country made pistol loaded with cartridges of 303 recovered from Julfikar Ali and a cartridge of 315 was seized from the possession of Lallan Mandal. The raiding party also seized Iron Katta, Iron Aari, one torch and empty bottles of wine and the articles were seized before the two independent witnesses, namely, Kamod Prasad and Madan Yadav. A seizure list was prepared with the signature of the two independent witnesses and the accused. The case was lodged on the written report of the Officer-In-Charge, C. K. Singh and after investigation, charge-sheet submitted. However, during the trial seven witnesses were examined. P. Ws. 1 and 2 are the independent seizure list witnesses but they have not supported the prosecution case and turned hostile. However, this witness has proved the signature on the seizure list which has been marked as Ext. 1. P. W. 2 has proved his thumb impression on the seizure list. P. W. 3 has supported the prosecution case about the seizure and has proved the seizure list marked as Ext. 2. P. Ws. 4 and 5 have also supported the prosecution case regarding the raid at the college and recovery of arms from the possession of the two accused persons who disclosed their name as Julfikar Ali and 3 Lallan Mandal and from their possession the arms were recovered. However, the Sergeant Major has been examined as court witness no. 1. He examined the seized firearm and has proved his report that the weapons seized and the cartridges were recovered and the arms were brought before him on 26.06.1996. P. W. 6 has brought this seized articles the country made pistol and the two cartridges and other articles. P. W. 7 brought the seized articles marked as material Exts. 1 to 6 which were recovered from the possession of the appellants as well as from the place of occurrence. 4. The trial court taking into consideration the fact that when the police reached at the place of occurrence and challenged 6-7 accused persons started fleeing away, out of which two persons were caught along with the firearm and some other articles were also seized from the possession and hence the firearm seized from the possession of the appellants were seized, seizure list prepared and those articles sent for examination and the Sergeant Major examined the arms as effective firearm and hence convicted the appellants under Sections 25(1-B) and 26(1) of the Arms Act and sentenced to undergo rigorous imprisonment for one year and six months respectively. 5. The trial court further took into consideration that the miscreants were collected at S. Wakil Ahamd Teachers Training (B.Ed.) College, Murgiya Chack (Gidarganj) is a lonely place along with the firearm and other articles such as Katta, Aari and torch as well as empty bottles of wine. On seeing the police party they started fleeing away and this conduct shows to substantiate the case that they were sitting and drinking with some ill motive may be for committing dacoity and hence held that the accused persons were caught with a country made pistol with cartridges and all these facts safely lead to the conclusion that they were sitting in the premises of S. Wakil Ahamd Teachers Training (B.Ed.) College, Murgiya Chack (Gidarganj) for making preparation for committing dacoity and hence held 4 that the appellants are guilty for the offence under Section 399 of the Indian Penal Code and further that they were assembled for the purpose of committing dacoity and hence convicted under Section 402 of the Indian Penal Code and sentenced accordingly. 6. Learned counsel for the appellants, however, contended that the accused persons were collected there in the premises of S. Wakil Ahamd Teachers Training (B.Ed.) College, Murgiya Chack (Gidarganj) and were armed with firearm and wine of bottles but there is no cogent and reliable evidence that they were assembled for the purpose of committing dacoity and there is nothing in evidence to suggest that they were making preparation for the dacoity and hence the conviction of the appellants under Sections 399 and 402 of the Indian Penal Code is not sustainable and further contended that the arms were seized at the place of occurrence. 7. Learned counsel for the appellants, however, contended that the appellants have asserted as defence that they were apprehended from their house and the wife of the appellant no. 1 even sent a letter to the CJM receipt no. 1530 about the fact that her husband had been apprehended by the police from her house and hence contended that the appellants have falsely been implicated in the case. 8. However, taking into consideration the submissions in the light of the evidence adduced. The case of the prosecution is that the appellants were apprehended by the police at about the time of occurrence while the appellants were fleeing away from the site of occurrence along with the firearm and the firearm was recovered from their possession. However, the two independent witnesses P. Ws. 1 and 2 turned hostile. However, they admitted the signature on the seizure list witnesses and they have been cross-examined by the police and discredited them for having been not supported the prosecution case. 9. However, the defence taken up by the appellants that they were 5 apprehended by the police from their house and the step taken by the wife of the victim that she sent a letter by post to the CJM is of no consequence then the wife of the appellants ought to have been said that the husband apprehended from their house the wife was required to move the higher police officer but instead of taking any step she only sent a letter to the CJM and the Judicial Officers cannot take steps in course of the investigation. 10. Learned counsel for the appellants, however, pointed out minor contradictions in the seizure list and the evidence. However, the contradiction pointed out does not go to the root of the prosecution case. 11. However, having regard to the facts that there is clear evidence that the appellants were apprehended at the place of occurrence and the firearm recovered which was sent for the examination and the Sergeant Major has examined as a court witness has proved the weapon and found them effective and those weapons have been marked as material Exts. 1 to 6 and hence I find and hold the prosecution has been able to prove Sections 25(1-B) and 26(1) of the Arms Act and the evidence recorded by the learned lower court regarding the order of conviction and sentence for the offence under Sections 25(1-B) and 26(1) of the Arms Act is sustainable and there is no defect in the finding to that extent. 12. However, with regard to the offence under Sections 399 and 402 of the Indian Penal Code is concerned the only evidence is that the accused persons were found in S. Wakil Ahamd Teachers Training (B.Ed.) College, Murgiya Chack (Gidarganj) at about 7:45 P.M. in the evening and hence the mere presence at the lonely place along with the firearm and as well as some articles like wine etc. does not make out a case for the offence under Sections 399 and 402 of the Indian Penal Code. However, the offence under Sections 399 and 402 of the Indian Penal Code are more or less similar ingredients with only difference that Section 402 of the Indian Penal Code attract when there is mere assemblage without preparation 6 whereas Section 399 of the Indian Penal Code requires some additional step by way of preparation. However, to prove the offence under Sections 399 and 402 of the Indian Penal Code there must be an intention to commit dacoity. However, the mere fact that the accused persons were in a lonely place at about 7:45 P.M. in the premises of S. Wakil Ahamd Teachers Training (B.Ed.) College, Murgiya Chack (Gidarganj) along with incriminating articles like firearm and torch etc. in their possession but having no evidence regarding any preparation or about anything to suggest that there was intention to commit dacoity and hence whatever the material on which the inference is drawn is not sufficient to prove the charge that the said assembly of the appellants was for commission of the dacoity or making preparation for the commission of the dacoity to hold the appellants guilty for the offence under Sections 402 and 399 of the Indian Penal Code. What is required to be proved is that there must be intention to commit dacoity and the assembly who was with the intention to commit dacoity. Further to hold appellants guilty for the offence under Section 399 of the Indian Penal Code it is required to prove that there was intention to commit dacoity and further there was preparation to commit dacoity. However, the evidence adduced that they were collected there in the premises of the said training college at 7:45 P.M. along with the bottles of wine and firearm is not sufficient to hold that they had collected with intention to commit dacoity or there was nothing to suggest that they were preparing for commission of the dacoity and hence the conviction of the appellants under Sections 399 and 402 of the Indian Penal Code is not sustainable and I find and hold that the prosecution has not been able to prove the charges for the offence under Section 399 and 402 of the Indian Penal Code and hence the order of conviction recorded under Section 399 and 402 of the Indian Penal Code is hereby set aside and the appeal is allowed to that extent. 13. However, having regard to the fact that the appellants have been convicted 7 for the offence under Section 25(1-B) and 26(1) of the Arms Act and sentenced to undergo rigorous imprisonment for one year and six months with a fine of Rs.250/- each and in default of fine to undergo rigorous imprisonment for 15 days. 14. However, having regard to the fact that the appellants have already remained in jail for more than about two years and hence already served the sentence for the offence under Sections 25(1-B) and 26(1) of the Arms Act and having regard to the facts that they have been ordered to be acquitted for the offence under Sections 399 and 402 of the Indian Penal Code hence the appellants are released from the liability of the bail bonds, if any. Hence, this appeal is allowed in part. (Gopal Prasad, J.) Patna High Court, Patna. Dated, the 15th December, 2011. N.A.F.R./Kundan.