1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 580-MA of 2007 Date of Decision: 2.12.2008 *** State of Punjab .. Applicant-Appellant Vs. Baljit Singh & Ors. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. B.S. Sra, DAG Punjab. Mr. Ashish Gupta, Advocate for the respondents. *** ARVIND KUMAR, J. The State is seeking leave of this Court for impugning the legality and proprietary of the judgment of acquittal dated 2nd June, 2007 passed by learned Sessions Judge, Faridkot in respect of the respondents. The respondents were tried by the learned Sessions Judge under Sections 399 and 402 IPC with the allegations that on 19.7.2003 the police party, pursuant to a secret information, nabbed them from a place near the cremation ground, Faridkot, when they were making plans and preparations for committing dacoity in the area. According to prosecution allegations a Kirpan was recovered from Sarvapal Singh, a dagger from respondent Gurpreet Singh while a country made pistol with a cartridge was recovered from respondent Gurcharan Singh alias Chana. It is further the case of the prosecution that respondents Balkaran Singh and Baljit Singh and their accomplice also made good their escape from the spot. During the trial the prosecution produced as many as five witnesses viz. PW1 ASI Jagdish Lal, who arrested the accused Balkaran Singh, ASI Pawan Kumar PW2 arrested the respondent Baljit Singh, PW3 HC Hira Singh PW4, Inspector Harvinder Singh, the Investigating Officer PW4 and PW5 ASI Makhan Masih were the part of the raiding party. When examined under Section 313 Cr.P.C. the case of the 2 respondents was of total denial and their false implication. However, no evidence in defence was led by the accused persons. On conclusion of trial, the learned trial court while observing that the prosecution has failed to prove the charges against the respondent, acquitted them of the allegations. I have heard learned counsel for the parties and have gone through the paper-book carefully. To prove the charges under the aforesaid heads, all such inferences must be eliminated. What is punishable under Section 399 of the Code is making of any preparation for committing any dacoity. Section 402 of the Code, in fact, is like a preventive Section under which punishment is imposed if there is an assemblage of five or more persons for the purpose of committing dacoity. Thus, it is clear that these two sections are confined to preparation for commission of dacoity and have no reference to any other offence. The prosecution, therefore, must prove from some evidence directly or indirectly or from attending circumstances that they had assembled for no other purpose than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. In the present case, a perusal of impugned judgment reflects that it has not come out from the mouth of any of the witnesses to have heard the conversation of the accused with each other with regarding to their making plans to commit dacoity in the area. It is the positive case of the prosecution that it is the secret informer who passed on the information with regard to the respondents preparing and planning to commit theft, but surprisingly, neither the said secret informer was joined in the raiding party nor he was produced during the trial. The evidence must be such which may plainly manifest the main charge to satisfy the conscience of the Court that the members of the assembly did some such act or acts which may lead to irresistible presumption that they had assembled for the purpose of committing dacoity and were making preparation for the same, but in absence of any such evidence coming forth, mere assemblage and recovery do not prove the charge. As said above, the evidence available falls short to satisfy the Court as to the raiding party had heard any conversation. There is another feature which resulted into drawing an adverse 3 inference against the prosecution version is non-joining of any independent witness in the raiding party. As far as legal proposition is concerned, no doubt, conviction can be based on the sole testimony of the police officers if they are reliable and worthy of credence. In some cases it might be possible that the police officers are not in a position to secure the presence of public witnesses and in these circumstances there is no alternative for the police officers to conduct raid without joining public witnesses. However, in the present case the information had already been received by the police and it had sufficient time to join the independent witnesses. Admittedly, after the receipt of secret information, it was reduced into writing and sent to the police station for registration of the case, but in the meanwhile there is nothing on record which is suggestive of the fact that any attempt was made by the police party to join any independent witness. When the time was available with the police, the very fact that the police party did not make efforts to join any public witness in the raiding party shows that the police party did not have any intention to join any public witness in the raiding party. This is a serious lapse on the part of the police and non-joining of public witness in the raiding party makes the case of the prosecution doubtful one. These factors rightly led the court below to return the verdict of acquittal in respect of the respondents. The High Court ought not to interfere with the order of acquittal unless the judgment of acquittal is perverse or highly unreasonable. In the instant case, the judgment of acquittal rendered by the learned trial court is neither perverse nor unreasonable and it cannot be said that the trial court based its findings on irrelevant or inadmissible evidence. In the circumstances, this Court is not inclined to grant the leave asked for. The application being without merit is dismissed. (ARVIND KUMAR) December 2,2008 JUDGE Jiten