Criminal Appeals No. 1038-SB, 1076-SB, 1 1914-SB and 2060-SB of 2010 In the High Court of Punjab and Haryana, at Chandigarh 1. Criminal Appeal No.1038-SB of 2010 Salamuddin alias Patla and Others ... Appellants Versus State of Haryana ... Respondent 2. Criminal Appeal No.1076-SB of 2010 Arif alias Iqbal ... Appellant Versus State of Haryana ... Respondent 3. Criminal Appeal No.1914-SB of 2010 Sanna alias Sehrun ... Appellant Versus State of Haryana ... Respondent AND 4. Criminal Appeal No.2060-SB of 2010 Kamruddin alias Mobile ... Appellant Versus State of Haryana ... Respondent Date of Decision: 29.11.2011 Criminal Appeals No. 1038-SB, 1076-SB, 2 1914-SB and 2060-SB of 2010 CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. 1. Whether Reporters of local papers may be allowed to see the judgment? - Yes 2. Whether to be referred to the reporters or not? - Yes 3. Whether the judgment should be reported in the Digest? - Yes Present: Mr. Rajesh Lamba and Mr. Amit Kumar Jain, Advocates, for the appellants (In Criminal Appeal No. 1038-SB of 2010). Mr. Anurag Arora, Advocate for the appellants (In Criminal Appeals No. 1076-SB and 1914-SB of 2010). Mr. Sarfraj Hussain, Advocate for the appellant (In Criminal Appeal No. 2060-SB of 2010). Mr. Anupam Sharma, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) Salamuddin alias Patla, Sahid alias Saahid, Arif alias Iqbal, Rahish alias Bhoora, Kamruddin alias Mobile and Sanna alias Sehrun were sent for trial in case arising out of case FIR No. 559 dated 18.12.2008, registered at Police Station Sarai Khawaja, under Sections 399 & 402 IPC and 25 of the Arms Act, 1959 (hereinafter referred to as “the Act”). The Court of Additional Sessions Judge, Faridabad,vide impugned judgment dated 13.3.2010, held the above said appellants guilty of offence under Sections 399 & 402 IPC and 25 of the Act and vide a separate order dated 15.3.2010, sentenced them as under:- Criminal Appeals No. 1038-SB, 1076-SB, 3 1914-SB and 2060-SB of 2010 Sr. No. Name of Accused Under Section Sentence awarded 1 Salamuddin alias Patla 399 IPC To undergo rigorous imprisonment for a period of six years and to pay a fine of ` 6000, in default whereof to further undergo imprisonment for a period of six months. 402 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5000, in default whereof to further undergo imprisonment for a period of five months. 25 of the Arms Act, 1959 To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 2000, in default whereof to further undergo imprisonment for a period of one month. 2 Sahid alias Saahid 399 IPC To undergo rigorous imprisonment for a period of six years and to pay a fine of ` 6000, in default whereof to further undergo imprisonment for a period of six months. 402 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5000, in default whereof to further undergo imprisonment for a period of five months. 25 of the Arms Act, 1959 To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 2000, in default whereof to further undergo imprisonment for a period of one month. Criminal Appeals No. 1038-SB, 1076-SB, 4 1914-SB and 2060-SB of 2010 Sr. No. Name of Accused Under Section Sentence awarded 3 Arif alias Iqbal 399 IPC To undergo rigorous imprisonment for a period of six years and to pay a fine of ` 6000, in default whereof to further undergo imprisonment for a period of six months. 402 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5000, in default whereof to further undergo imprisonment for a period of five months. 25 of the Arms Act, 1959 To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 2000, in default whereof to further undergo imprisonment for a period of one month. 4 Rahish alias Bhoora 399 IPC To undergo rigorous imprisonment for a period of six years and to pay a fine of ` 6000, in default whereof to further undergo imprisonment for a period of six months. 402 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5000, in default whereof to further undergo imprisonment for a period of five months. 25 of the Arms Act, 1959 To undergo rigorous imprisonment for a period of two years and to pay a fine of ` 2000, in default whereof to further undergo imprisonment for a period of two months. Criminal Appeals No. 1038-SB, 1076-SB, 5 1914-SB and 2060-SB of 2010 Sr. No. Name of Accused Under Section Sentence awarded 5 Kamruddin alias Mobile 399 IPC To undergo rigorous imprisonment for a period of six years and to pay a fine of ` 6000, in default whereof to further undergo imprisonment for a period of six months. 402 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5000, in default whereof to further undergo imprisonment for a period of five months. 25 of the Arms Act, 1959 To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 2000, in default whereof to further undergo imprisonment for a period of one month. 6 Sanna alias Sehrun 399 IPC To undergo rigorous imprisonment for a period of six years and to pay a fine of ` 6000, in default whereof to further undergo imprisonment for a period of six months. 402 IPC To undergo rigorous imprisonment for a period of five years and to pay a fine of ` 5000, in default whereof to further undergo imprisonment for a period of five months. 25 of the Arms Act, 1959 To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 2000, in default whereof to further undergo imprisonment for a period of one month. Criminal Appeals No. 1038-SB, 1076-SB, 6 1914-SB and 2060-SB of 2010 All the sentences were ordered to run concurrently. The impugned judgment of conviction and order of sentence have been made subject matter of four appeals. Criminal Appeal No. 1038-SB of 2010 has been preferred by Salamuddin alias Patla, Sahid alias Saahid, Rahish alias Bhoora, Criminal Appeal No. 1076-SB of 2010 by Arif alias Iqbal, Criminal Appeal No. 1914-SB of 2010 by Sanna alias Sehrun, whereas Kamruddin alias Mobile has approached this Court by filing Criminal Appeal No. 2060-SB of 2010. Hence, all these appeals shall be decided together by way of this judgment. Sub Inspector Amarjeet Singh, Incharge, Central Investigating Agency, Badarpur Border, Faridabad, had sent a ruqa Ex.PW4/O to the Police Station Sarai Khwaja for registration of the case through Devinder, E. Head Constable upon which formal FIR Ex.PW.4/P was recorded at Police Station Sarai Khwaja. In the FIR, the witness stated that he along with his companion police officials was present at the bye- pass road near cremation ground on patrol duty for detection of crime. At that time, a secret informer appeared and relayed information that on the road going inside from NHPC Turn Bye-pass road, a Santro car of white colour whose bonnet is open and a Bolero Jeep are standing in dark without number plates. A boy is standing near the Santro Car and in Bolero Jeep five boys namely Sanna alias Sehrun, Sahid alias Saahid, Rahish alias Bhoora, Salamuddin alias Patla, Kamruddin alias Mobile and Arif alias Iqbal are sitting. They are armed with deadly weapons like knives and country-made pistols. These boys used to Criminal Appeals No. 1038-SB, 1076-SB, 7 1914-SB and 2060-SB of 2010 indulge in stealing of cows and in case cows are not found, they commit theft and loot the vehicles passing through the road. It was stated that the boy, who was standing near the Santro car used to stop the vehicles and the persons standing near Bolero, simultaneously would loot the vehicles. In case a raid is conducted, the above said persons could be apprehended red-handed along with their weapons. Believing the information to be reliable, PW.4 Amarjeet Singh, Sub Inspector, prepared the raiding party and red light of the vehicle was removed. Deepak, driver of the vehicle, was deputed by the police party, to drive the vehicle towards Santro Car. As the vehicle reached near the point specified, then the boy standing near Santro Car signaled him to stop the vehicle. As and when Deepak, driver, stopped the vehicle, the other boys surrounded the vehicle. At that time, Amarjeet Singh, Sub Inspector, gave a lalkara and thereafter six persons were apprehended with the help of police officials. It is stated that after the accused were arrested, vide different recovery memos, the weapons were recovered from them. The person, who was first apprehended, had disclosed his name as Rahish alias Bhoora from whom a country-made pistol was recovered. Thereafter, from other persons namely Sanna alias Sehrun, Sahid alias Saahid, Salamuddin alias Patla, Kamruddin alias Mobile and Arif alias Iqbal, knives having blades of different sizes were recovered. After registration of the case, FIR was investigated and the report unde Section 173 Cr.P.C. was submitted. All the appellants were charged for the offence under Sections 399 and 402 IPC. The first Criminal Appeals No. 1038-SB, 1076-SB, 8 1914-SB and 2060-SB of 2010 charge stated that all the accused, on 18.12.2008 at about 9.15 P.M. were planning to commit dacoity by way of looting passerby vehicles near NHPC Turn, Bye-pass Road, Faridabad and thus, they had committed an offence punishable under Section 399 IPC. For assembling for the said purpose, they were charged for the offence under Section 402 IPC. For keeping in possession a country made pistol along with live cartridges, without any permit or licence, Rahish alias Bhoora was charged for the offence punishable under Section 25 of the Act. For recovery of knife Sanna alias Sehrun, Sahid alias Saahid, Salamuddin alias Patla, Kamruddin alias Mobile and Arif alias Iqbal were charged for the offence punishable under Section 25 of the Act. The accused, after framing of the charge, pleaded not guilty and claimed trial. The prosecution examined five witnesses. According to learned counsel for the appellants, Deepak, driver of the police vehicle, was not cited as a witness. Sub Inspector Amarjeet Singh, Investigating Officer, appeared as PW.4. He stated that Deepak, Constable, was directed to wear plain clothes and the red light was got removed. As soon as the police vehicle reached near the Santro and Bolero Cars, the accused had surrounded it and after great efforts, they apprehended the accused persons, present in Court. Regarding the recovery, the Investigating Officer, had to say as under:- “...One country made pistol duly loaded was recovered from his right hand and it was then Criminal Appeals No. 1038-SB, 1076-SB, 9 1914-SB and 2060-SB of 2010 unloaded. The country made pistol was taken into police possession vide recovery memo Ex.PW-4/A. Sketch of the pistol was prepared which is Ex.PW- 4/B. The length of the barrel was 10.1 cm and that of the body was 8.2 cm. The aforesaid memos were signed by Rajender Singh ASI and Ayub Khan EASI as witnesses. Thereafter, one knife was recovered from the possession of Salamuddin which was taken into police possession vide recovery memo Ex.PW- 4/A and its khakha is Ex.WP-4/C. One knife was recovered from the possession of accused Sahid which was taken into police possession vide recovery memo Ex.PW-4/A and its khakha is Ex.PW-4/D. One knife was also recovered from the possession of accused Kamruddin alias Mobile which was taken into possession vide recovery memo Ex.PW-4/A and its khakha is Ex.PE. One knife was also recovered from the accused Seruddin which was taken into police possession vide recovery memo Ex.PW-4/A and its khakha is Ex.PW-4/F. One knife was recovered from the possession of accused Arif which was taken into possession vide recovery memo Ex.PW-4/A and its khakha is Ex.PW-4/G. All the memos were signed by ASI Rajender Pal and EASI Ayub Khan as Criminal Appeals No. 1038-SB, 1076-SB, 10 1914-SB and 2060-SB of 2010 witnesses. Four rods and one baniyan of red colour duly smeared with blood were recovered from Santro car which were taken into possession vide recovery memo Ex.PW-4/H. The Bolero Car and Santro Car were taken into police possession vide recovery memo Ex.PW-4/J. These memos also bear the signatures of the same set of witnesses. I recorded the statements of witnesses under Section 161 Cr.P.C. I also prepared the rough site plan Ex.PW-4/K with its correct marginal notes which are in my hand and are correct.” The knives were exhibited as Ex.P3 to Ex.P8, whereas the pistol along with live cartridges were exhibited as Ex.P1 and Ex.P2. In cross-examination, this witness stated that a secret information was received at 8/8.30 P.M. The distance between the place of information and the spot was approximately 3 Kms. The place of occurrence was a lonely place from where hardly one or two persons could pass. He further stated that secret information was not reduced into writing and the senior officers were not informed. To corroborate the testimony of PW.4 Amarjeet Singh, Sub Inspector, Ayub Khan, E. Assistant Sub Inspector, appeared as PW.5. In cross-examination, this witness stated that they reached at the spot at about 8.30 P.M. and the place of occurrence is a busy place which is frequented by public. He has further stated that no independent witness was joined at the time of arrest of the accused and recoveries effected Criminal Appeals No. 1038-SB, 1076-SB, 11 1914-SB and 2060-SB of 2010 from them. PW.1 Sarwan Kumar, Draftsman, had prepared the site plan of the spot as Ex.PW.1/A. PW.2 Anoop Singh, Constable, had examined the country- made pistol and found the same to be in working order. He has submitted his report as Ex.PW.2/A to this effect. In cross-examination, this witness stated that the country-made pistol was not in a sealed condition. PW.3 Mahesh Gupta, Additional Ahlmad in the office of District Magistrate, Faridabad, proved the sanction order Ex.PW.3/A for launching prosecution of the appellants for the offence under the Act. Thereafter, the prosecution closed its evidence. The statements of accused, under Section 313 Cr.P.C., were recorded. All the incriminating evidence was put to them. They denied the same and pleaded innocence. The entire prosecution case rests on the testimonies of PW.4 Amarjeet Singh, Sub Inspector and PW.5 Ayub Khan, E. Assistant Sub Inspector. According to the testimonies of these two witnesses, six persons had assembled at the place of occurrence. Five persons were sitting in Bolero Jeep, whereas one person was standing near the Santro car, bonnet whereof was open. It is stated that the Government Vehicle was spotted by one person and thereafter all the accused surrounded it and they were apprehended with great difficulty. That being the entire case, this Court has to determine as to whether the appellants have been rightly convicted for the offence under Sections Criminal Appeals No. 1038-SB, 1076-SB, 12 1914-SB and 2060-SB of 2010 399 and 402 IPC and whether the ingredients of the said Sections have been proved by the prosecution or not. Before this Court do so, it will be necessary to notice case law on the subject. Chaturi Yadav v. State of Bihar 1979 Supreme Court Cases (Criminal) 502 is a celebrated judgment on the subject upon which various High Courts have placed reliance to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not. Learned Single Judge of this Court in Baldev Singh v. State of Haryana 1988(1) Recent Criminal Reports 629 relied upon the observations made in Chaturi Yadav's case (supra) and noticed as under:- “8. Requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of five appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity. A similar case came up before their Lordships of the Supreme Court (Chaturi Yadav and Others v. State of Bihar, 1979 SCC (Crl.) 502) where it was observed:- “The Courts below have drawn the Criminal Appeals No. 1038-SB, 1076-SB, 13 1914-SB and 2060-SB of 2010 inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1.00 a.m. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned Counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1.00 a.m. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that Criminal Appeals No. 1038-SB, 1076-SB, 14 1914-SB and 2060-SB of 2010 object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Section 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court. In Pahalwan Singh v. State of Madhya Pradesh, 1987 MP LJ 449, the facts were that on the night Criminal Appeals No. 1038-SB, 1076-SB, 15 1914-SB and 2060-SB of 2010 intervening 22nd and 23rd June, 1977, RS Tiwari received an information and with police force and Panch witnesses proceeded towards the forest situated between Rahatwas and Hanwas villages and found all the accused planning and preparing for committing a dacoity. On being challaned, three accused persons ran away and the rest of the accused were apprehended. Two guns and one sword were seized and all the seven persons were apprehended and taken to the police station where First Information Report was recorded. The three persons who absconded, were arrested later. Sanction for prosecution under sections 25 and 27 of the Arms Act was obtained from the District Magistrate. All the trials were consolidated into one, and, thus, all the accused were tried and evidence recorded in one trial. In these circumstances, High Court of Madhya Pradesh observed as under:- “After going though the evidence, there is no dispute that in between the two villages mentioned above, there is a jungle. There is also no dispute that the accused did not have any house breaking implement or any instrument which can be said to be of use while committing dacoity, that is to Criminal Appeals No. 1038-SB, 1076-SB, 16 1914-SB and 2060-SB of 2010 say, an instrument to break open a lock or any instrument to break open any room or window. The only evidence against them is that they were having arms with them. The other evidence is that before they could be apprehended, some one from the gang said in a loud voice that the time is up to commit dacoity and, therefore, we must proceed. Excepting this, there is nothing to show that the appellants, in any way, were preparing to commit dacoity.” Cases Veer Singh and three others v. The State of Madhya Pradesh, Crl. Appeal No. 142 of 1980 decided on 26.11.1980, Chamariya v. State of M.P., 1976 WN(1) 306 and Chaturi Yadav v. State of Bihar 1979 SC (Crl.0 502, were referred to by the Court for similar facts and with above observations the appellant were acquitted of the charges under Sections 399/402 IPC. So far as the cases under Sections 25 and 27 of the Arms Act, the appellants were also acquitted thereunder on the above-referred to facts.” A Division Bench of this Court in Mahavir v. State of Haryana 2010 (6) Recent Criminal Reports 3073 held as under:- Criminal Appeals No. 1038-SB, 1076-SB, 17 1914-SB and 2060-SB of 2010 “15. Now coming to the factum, as to whether, the accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Sections 399 and 402 of the Indian Penal Code, are confined to making preparation for commission of dacoity and have no reference to any other offences. Therefore, the prosecution must prove, from some evidence, directly or indirectly, or from attending circumstances, that the accused persons 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. Though the word “preparation” has not been defined, in the Penal Code, the prosecution must show some such conduct, to prove the factum of “preparation” by the assembly, and that the accused persons had conceived any such designs for committing dacoity, and, in fact, intended to achieve the object, for which they had assembled. Therefore, the mere fact that some persons were found sitting at a lonely place, at night, in a house which was under Criminal Appeals No. 1038-SB, 1076-SB, 18 1914-SB and 2060-SB of 2010 construction, and incriminating articles like firearms, some bombs and a Bhujali were recovered from their possession would not be sufficient to prove the charge that they had assembled for making preparation for commission of dacoity. 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, mere assemblage and recovery of firearms do not prove the charge...” Chaturi Yadav's case (supra) has also been relied upon by the Delhi High Court in Des Raj alias Dass v. The State 2000 Criminal Law Journal 2083 to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the record by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity. In Asgar and Another v. State of Rajasthan 2003 (3) Recent Criminal Reports 359, a Judge of the Rajasthan High Court Criminal Appeals No. 1038-SB, 1076-SB, 19 1914-SB and 2060-SB of 2010 had noticed the