'^..J HIGH COURT OF CHHATTISGARH. BILASPUR ^ APPELLANTS: RESPONDENT: Criminal Appeal No.603 of 1993 1. Birbal S/o Bhagirathi Chouhan aged about 29 years resident of village Belpali thana Pussore district Raigarh. 2. Rajesh Chouhan S/o Mani Ram Chauhan aged about 23 years r/o Village Korha Tarai thana Pusore district Raigarh. Versus State of M.P. (now State of C.G.) through S.O. Pussore. APPELLANTS: (In Jail) RESPONDENT: Criminal Appeal No.634 of 1993 1. Luxman Prasad Sahu s/o Shri Ganesh Ram Sahu, aged about 43 years occupation tailoring, resident of Village Bichinara, present residence jutmil, Nawapara, Raigarh, 2. Sudarshan Yadav s/o Radhe Yadav, aged about 28 years, occupation carpenter, residence of Darramuda, distt. Raigarh, 3. Bhcko alias Nilmani s/o Akul Yadav 30 yrs. residence of Village Taprenga, Thana Tamnar, present residence Jutmil, Raigarh, 4. Prem Kishore Chohan s/o Shobharam Chohan, aged about 25 years, occupation cultivation, residence of village Tapranga, Thana Tamnar, distt. Raigarh, Versus State of M.P. (now State of C.G.) through S.O. Pussore. Criminal Appeal No.881 of 1993 APPELLANT: (In Jail) RESPONDENT: Lakshmi Prasad Sahu, son of Shri Chainram Sahu, aged about 26 years, cultivator, resident of Basanpali, Thana Tamnar, District Raigarh, M.P. (now C.G.) Versus State of Madhya Pradesh (now State of Chhattisgarh) through P.S. Tamnar BIBHUTI PRASAD Digitally signed by BIBHUTI PRASAD Date: 2025.02.07 12:55:30 +0530 / / 1 / if ^m:.. '' V. APPELLANT: RESPONDENT: APPELLANT: RESPONDENT: APPELLANT: RESPONDENT: Criminal Appeal No.1172 of 1993 Pahariya alias Goverdhan aged 27 years, resident of village Tapranga, Thana Tamnar, District Raigarh (M.P.) (now C.G.) versus State of Madhya Pradesh (now State of Chhattisgarh) Criminal Appeal No.1173 of 1993 Rarn Ratan son of Atmaram Lohar, aged about 35 years, resident of vitlage Basanpali,- Thana Tamnar, District Raigarh (M.P.) (now C.G.). Versus The State of Madhya Pradesh (now the State of Chhattisgarh) AND Criminal Appeal No.1174 pf1993 Goverdhan Khasiya son of Ram Charan Khasiya, aged about 27 years, resident of Doma bouna, Tahsil Tamnar, Distt. Raigarh (M.P.) (nowC.G.) Versus State of Madhya Pradesh (now State of Chhattisgarh) {Criminal appeals under Section 374 (2) of the Code of Criminal Procedure, 1973} Present: Mr. Sunil Sahu, counsel for the appeltants in all appeals. Mr. Rakesh Kumar Jha, Deputy Govt. Advocate for the State/ respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J JUDGMENT (Deliveredon 9th July, 2010) 1. Since all the above criminai appeals have been preferred against the common judgment dated 15-6-93 passed by the 2 Additional Sessions Judge, Raigarh, in Sessions Trial No. 103/92, they are being disposed of by this common judgment. 'T^ 4 ^ .,-^ 2. By these appeals, the appellants havechallenged legality and propriety of the judgment of conviction & order of sentence dated 15-6-93 passed by the 2 Additional Sessions Judge, Raigarh, in Sessions Trial No. 103/92, whereby & whereunder learned Additional Sessions Judge after holding the appellants guilty for preparation to commit dacoity and assembling for the purpose of committing dacoity, convicted the appellants under Sections 399 & 402 ofthe I.P.C. and sentenced each of them to undergo R.l. for five years on both counts. 3. Conviction is impugned on the ground that without any evidence of such preparation and assembling for commission of dacoity, the trial Court has convicted & sentenced the appellants and thereby committed illegality. 4. Case of the prosecution, in brief, is that on 10-2-92 Ajay Sharma (PW-8), the then Station Officer Police Station Pusore, Distt. Raigarh, received information through radio message that some suspected persons were present near Raigarh Aerodrome with weapons, he proceeded for the spot along with police force and four police party were prepared. When they were going towards the Airport (hawai patti), they saw that some persons were sitting under a tree and were talking in low voice, after surrounding the persons, police party challenged them on which they woke up with arms and tried to flee from the spot. By taking the benefit of darkness, four persons succesded in escaping from the spot. Finally police party arrested fourteen persons i.e. the appellants herein and four accused who were acquitted by the trial Court. Sword, Eveready torch, betel axe, knife, stick, bottle of liquor & glass, eatable items and candle were seized from the accused persons. Dehati nalsi was recorded vide Ex.P-31. One iword & torch v/ere seized from accused Sudarshan vide Ex.P-2. One betel axe & torch were seized from accused Jageshwar vide Ex.P-3. Likewise, one katar was seized from accused Bhoko @ Nilmani vide Ex. P-4. Dagger like sword was seized from accused Shani Rawat vide Ex. P-5. Stick was peized from accused Laxmi Prasad vide Ex.P-6. Spear (bhala) was seized from accused Prem Kishore vide Ex. P-7. Sword was seized from accused Goverdhan vide Ex. P-8. Spring knife was seized from accused Laxman Prasad vide Ex.P-9. Bomb was seized from accused Pahariya @ Goverdhan vide Ex.P-10. Button knife was seized from accused Ramratan vide Ex.P-11. Betel axe was seized from accused Rajesh Chouhan vide Ex. P-12. Spear (bhala) was seized from accused Paluram vide Ex. P-13. Stick was seized from accused Birbal vide Ex. P-14. Stick was seized from accused Hirawan @ Ahirawan vide Ex. P-15. Bottte of liquor, four glasses, eatable items and match box were seized from the spot vide Ex. P-16. Spot map was prepared vide Ex. P-33. Patwari prepared spot map vide Ex.P-35. All the accused were sent for medical examination and they were examined medically vide Exs. P-17 to P-30. 5. Statementsof the witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed before the Court of Judicial Magistrate First Class, Raigarh, who in ^urn, committed the case to the Court of Sessions, Raigarh, from where learned Additional Sessions Judge received the case on transfer for trial. 6. In order to prove the guilt of the accused, the prosecution has examined as many as nine witnesses. The accused were examined under Section 313 of the Cr.P.C. in which they denied the circumstances app'earing against them, pteaded innocence and false implication. The accused persons have examined defence witnesses Badri Prasad (DW-1), Boloram (DW-2), Laxman (DW-3), Bundram (DW-4) and Akrur (DW-5) who have deposed that accused Paluram, Shani Kumar & Ahirawan were present in their houses and the police has taken them on 24-1-92 from their houses. Akrur (DW-5) has deposed that he was working as Chowkidar in the Aerodrome, near the alleged place of incident where light facility was available and place was visible from his place, but he has not seen anything or presence of any person on the date & time of the incident. 7. After affording opportunity of hearing to the parties, learned Additional Sessions Judge while acquitting accused Jageshwar, Shani Rawat, Paluram & Hirawan, convicted the appellants herein under Sections 399 & 402 ofthe I.P.C. and sentenced each ofthem in the aforesaid manner. 8. I have heard learned counsel for the parties, perused the judgment and record of the trial Court. 9. Learned counsel for the appellants vehemently argued that the alleged search was made at the instance of Lokesh Agrawal (PW-1) whom some person had tried to chase near Kodatarai on 10-2-92 between 8-9 p.m., but the appellants herein were not present on the spot at the time of incident, they were never armed with deadly weapons, they had not assembled for commission of dacoity and they had not made any •// 5 preparation for dacoity, but they have been falsely implicated in the crime in question. Learned counsel further argued that in order to prove offence under Sections 399 & 402 of the I.P.C. the prosecution is under obligation to prove that persons had assembled and they were making preparation for dacoity, even mere presence at suspicious spot with arms is not sufficient for drawing inference that they have assembled for commission of dacoity and they were making preparation for committing dacoity. In the present case, except police witnesses, no independent witness has proved or supported the case of the prosecution. Police witnesses have deposed that four police party were made and potice party had arrested the accused persons, but they had not stated that why the appellants were sitting at one place, what was the object and what they were discussing about. In absence of the aforesaid evidence, no definite inference would be possible that the appellants had assembled for the purpose of committing dacoity and they were making preparation for committing dacoity. 10.0n the other hand, learned State counsel vehemently opposed the appeals and submitted that all the appellants were found in lonely place in suspicious position at 1 a.m. mid night and they were armed with deadly weapons viz., bomb, sword, betel axe, knife & stick which shows their intention. The aforesaid facts are sufficient for drawing inference that all the appellants had assembled for the purpose of committing dacoity and they were making preparation for committing dacoity, even prior to the incident, they have tried to commit dacoity on Lokesh Agrawal (PW-1). 11.1n orderto appreciate the arguments advanced on behalfofthe parties, l have examined the evidence adduced on behalf ofthe parties. 12.1n the present case, defence has examined Badri Prasad (DW-1), Boloram (DW-2), Laxman (DW-3) & Bundram (DW-4) who have deposed that police has taken accused Paluram, Shani Kumar & Ahirawan. After the alleged date of incident, considering the defence of the aforesaid accused persons, by extending the benefit of doubt, learned Additional Sessions Judge has acquitted the aforesaid three accused along with accused Jageshwar. 13-The appellants herein have not examined any defence witness, in the present case, in support of their claim. As per the evidence of Lokesh 1 te. ^ '^- ,ryAgrawal (PW-1), on 10-2-92 i.e. the date of incident between 8 p.m. & 9 p.m. while he was coming to Raigarh from Pusore by Spark moped, he saw 8-10 persons at Kodatarai near Airport, they were holding sticks, they tried to stop him and they chased him, but he fled away from the spot along with his friend Rashid and informed Raigarh police on which police force proceeded for the spot. This witness has not supported the case of the prosecution and the prosecution has declared him hostile. He has admitted signature over Exs.P-2 to P-16, the alleged seizure of articles, but has denied the fact of recovery from the accused persons. However, in para 3 of his cross-examination he has admitted that after 4- 5 hours of the alleged incident when some persons chased him, he was called by the police and the police told him that- the persons who were chasing him have been arrested. After showing the weapons, the police obtained signature of this witness on the seizure memo. In para 7 of his cross-examination, he has again admitted that some persons tried to stop him at Kodatarai village. 14-Although Lokesh Agrawal (PW-1) has not fully supported the case of the prosecution, but his evidence can be relied up to the extent that on the date of incident 8-10 persons were present at Kodatarai near Airport, the alleged place of incident, between 8 & 9 p.m., they tried to stop him and they chased him on which he fled away from the spot and wentto the Police Station where he intimated the police whereupon the police proceeded for the spot and then after 4-5 hours he was called by the police who told him that the persons who were chasing and stopping him have been arrested by the police along with weapons. These facts are uncontroverted and are sufficient for drawing inference that on the date of incident at about 8-9 p.m. some persons tried to commit dacoity and thereafter, the police arrested them. 15.A.K. Khan (PW-5) - Sub Inspector has deposed that on 9-2-92 at about 10 p.m., Lokesh Agrawal (PW-1) along with his friend Rashid Khan came to the Police Station and informed that about 15 persons armed with weapons were moving near the Airport and even they have tried to stop him on which he (PW-5) informed the aforesaid fact to his officers and also to Station Incharge Chakradhar Nagar, Station Incharge Pusbre and requested them for reaching to the spot. They went towards the spot with police force where they arranged four police parties for search and arrest of the persons, they surrounded the persons who were sitting // ^ ;K. '^ ' .•>• . -- ^.:- under a tree and when he asked them, they tried to escape from the spot. The police party apprehended the persons with arms, eatable items and liquor. At the time of arrest some persons fled away from the spot. 16.M.S. Chouhan (PW-4) has substantiatly corroborated the evidence of A.K. Khan (PW-5). Satyendra Pandey (PW-6) - Sub Inspector, S.L. Kanwar (PW-7) - Inspector & Ajay Sharma (PW-8) - Sub Inspector have substantially corroborated the evidence of A.K. Khan (PW-5) relating to preparation of search parties, presence of accused persons and their arrest. Defence has cross-examined these witnesses in detail, but has not been able to elicit anything in their cross-examination to discredit their testimony relating to search and arrest of accused persons on the spot at about1 a.m. mid night. 17.The accused persons were not found in the house of any person or at any public place to presume their natural presence, they were found at a lonely place near the road and they were holding weapons. The accused persons have not offered any explanation as to why they had gathered at such lonely place and what was the purpose of their gathering. As per the addresses of the accused persons, they are not residents of one village or vicinity, they are residents of different villages, Police Stations and even different districts. Their gathering and presence at one place was not natural. In order toconvict the accused under Sections 399 & 402 of the I.P.C. for making preparation for dacoity and assembling for preparation of dacoity, the prosecution is required to prove that they were making preparation for dacoity and they have assembled for such object. Mere presence or even presence with deadly weapons with another object or intention is not sufficient for conviction of the accused persons under Sections 399 & 402 of the I.P.C., unless there are some cogent and strong circumstances for drawing inference that their presence was only for commission of dacoity. In the present case,presence of the aforesaid ten appellants who are residents of different places, Police Stations & districts at odd hours i.e. 1 a.m. (mid night) at lonely place was not natural. The appellants have not offered any explanation and they were armed with weapons. ^oma 8 18.1n the present case, the appellants gathered and were sitting under the roof of a tree not surrounded by any wall, they were not gathered inside a room or house, and therefore, hearing of conversation between the appellants from a short distance or close distance was not possible for the police party, but the fact remains that the appellants who are residents of different places gathered at one place at 1 a.m. in the night in odd hours. The appellants were holding weapons and just before the incident they chased Lokesh Agrawal (PW-1) and tried to stop him. These facts are sufficient for drawing inference that all the appeltants gathered for the purpose of committing dacoity and they were making preparation for committing dacoity. 19.The circumstances exist in the present case give rise to the only presumption that the appeltants who were present with weapons at lonely place in the odd hours were making preparation for dacoity and they had assembled for commission of dacoity. 20-After appreciating the evidence availabte on record, while acquitting four accused persons, learned Additional Sessions Judge has convicted thfe appellants herein under Sections 399 & 402 of the I.P.C. Conviction of the appellants is based on legal, clinching and cogent evidence sustainable under the law. 21.As regards the question of sentence, the triat Court has sentenced the appellants to undergo R.l. for five years on both counts. Sentences imposed upon the appellants are just and proper. 22.For the foregoing reasons, the appeals (Cr.A.Nos.603/1993, 634/1993, 881/1993, 1172/1993, 1173/1993 & 1174/1993) are devoid of merit, same are liable to be dismissed and are hereby dismissed. The appellants herein are on bail, they shall surrender themselves before the Court of 2nd Additional Sessions Judge, Raigarh, immediately forserving the sentences imposed upon them in Sessions Trial No. 103/92. Sd/- T.P. Sharma Judge