1 Criminal Appeal No.287 of 1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.287 OF 1998 1. Arjun s/o Sadashiv Kale, Age major, Occ. Agri., R/o Jamkhed, Tq. Jamkhed, District Ahmednagar. 2. Bansi s/o Zingu Kale, Age major, Occ. Agri., R/o Jamkhed, Tq. Jamkhed, District Ahmednagar. ... APPELLANTS VERSUS The State of Maharashtra, (Copy to be served on the Asstt. Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) ... RESPONDENT ..... Shri K.S. Bhore, Advocate for the appellants – absent Shri V.H. Dighe, A.P.P. for the respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 6th January, 2011. ORAL JUDGMENT : 1. Counsel called, absent. Heard learned A.P.P. Perused the record. 2. Conviction under Section 399 of the Indian Penal Code, recorded by the learned Additional Sessions Judge, Ahmednagar in Sessions Case No.186/97, dated 29.8.1998 is questioned. The prosecution story emerge that, P.S.I. Budhwant attached to Police 2 Criminal Appeal No.287 of 1998 Station, Jamkhed, while on patrolling duty along with his staff during the night intervening 8.10.1997, at around 23.00 Hrs. received discret information that some persons have assembled near Khandoba Temple with an intention to commit dacoity. Consequent upon such information, the police party went near the Khandoba temple, which is away from S.T. Stand and at around 00.30 Hrs., the accused Nos.1 to 6 were found in suspicious condition. On noticing presence of police party, they started running in one direction, chased and the accused Nos.1 to 5 could be nabbed, however, accused No.6 sneaked and subsequently arrested. The prosecution case further proceeds, in the search caused from the accused/appellant Arjun, a knife was recovered, from the accused/appellant Bansi iron rod was recovered, from accused Prakash Pawar, a cycle chain and batter was recovered, from accused Kailas Pawar, another iron rod was recovered. These implements were taken charge under panchanama (Exhibit 15) in presence of the panch. Report was lodged by P.S.I. Budhwant (Exhibit 20). 3. In order to establish the guilt against the accused, P.W.1 Murumkar fixed the strength of police party to be six persons. The learned Sessions Judge believed the evidence of P.W.1 Murumkar, who acted as a panch. However, he lost track of the matter as to under what circumstance P.W.1 could be present at or near by the spot at such odd hours. P.W. 1 is a labour by occupation. If he was passing from the temple, it should have been so reflected in his narration. Nothing was projected before the learned Sessions Judge. The learned Sessions Judge surmised that he may be a passer-by and, therefore, activating as 3 Criminal Appeal No.287 of 1998 a panch. The identification of the articles by P.W.1 having taken charge under panchanama at Exhibit 15 at odd hours near Khandoba Temple, believed by the learned Judge itself is a miserable affair. 4. It was pointed, based on the evidence that neither P.S.I. Budhwant nor the complainant could independently disclose as to which instrument was found with the accused/ during the respective search. P.S.I. Budhwant, even could not identify the accused. He has narrated, due to lapse of one year, it is not possible for him to identify the accused. 5. The defence that has been projected by the accused is, they belong to Pardhi community and they have been arrested on suspicion. The learned Sessions Judge in paragraph No.15 recorded that the accused are unemployed and, therefore, an inference can be drawn that they are habitual offenders. Such exercise by the learned Judge is rubbing salt to the injury and to the character of the accused/ appellants. Such observations are in itself are way ward to be discarded. The accused/ appellants suggested and all throughout put forward that they are gainfully employed. Two of them are having pan shop at the bus stand. The certificate from the Village Development Officer was also produced. The learned Judge ought to have considered these aspects. 6. For an offence under section 399 of the Indian Penal Code, the prosecution has to establish that there was making a preparation to commit dacoity. Preparation consist in devising or arranging means necessary for commission of an offence. Mere assembly of the accused, 4 Criminal Appeal No.287 of 1998 even if accepted, without there being any iota of further preparation, would not be branding within the meaning of Section 399 of the Indian Penal Code to commit dacoity. This basic aspect has been lost track of by the learned Sessions Judge and he reached on erroneous assumption. Even if presence of the accused/ appellants was accepted at the material time near Khandoba Temple, the surrounding circumstance, as illustrated in the panchanama demonstrate that it is at a close proximity to the road, which has traffic flow, and even the bus stand is at a distance of 1 Km. Thus, mere presence of the accused at 23.00 Hrs. would not be attracting provisions of Section 399 of the Indian Penal Code unless it is shown that they had assembled for purpose of committing dacoity. No evidence to illustrate theory of committing dacoity. No intention of accused surfaced to project criminality. Mere assembly at odd hours would not constitute an offence. 7. In the result, the learned Sessions Judge certainly erred in convicting the accused/ appellants for the offence punishable under Section 399 of the Indian Penal Code. The order calls for interference. The sentence of conviction recorded by the learned Additional Sessions Judge, Ahmednagar referred hereinabove is set aside. Accused/ appellants are acquitted of the charge levelled against them. Fine, if paid, be refunded to them. Criminal Appeal No.287/1998 is allowed. K.U. CHANDIWAL JUDGE