1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 557-MA of 2008 Date of Decision: 11.12.2008 *** State of Haryana .. Appellant Vs. Saleem etc. .. Respondents. CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR, Present:- Mr. Dilbagh Singh AAG, Haryana. *** ARVIND KUMAR, J. The State is seeking leave of this Court for impugning the legality and proprietary of the judgment of acquittal dated 20.8.2008 passed by learned Additional Sessions Judge, Nuh in respect of the respondents. The respondents were jointly tried by the learned Sessions Judge under Sections 399, 402 and 411 IPC while respondent Saleem was additionally charged for an offence under Section 25 of the Arms Act, with the allegations that on 24.1.2007 the police party headed by PW6 Insp. Anup Singh, pursuant to a secret information, nabbed them from an abandoned room when they were making plans and preparations for committing dacoity in the area. According to prosecution allegations a loaded country made revolver was recovered from respondent Saleem, iron rod from Raju and Iqbal and a danda from respondent Bilal. Motor cycles recovered from the spot were also found to be stolen one and the same were also taken into police possession along with the weapons. During the trial the prosecution produced as many as seven witnesses viz. PW1 Dharambir as PW1 who proved the sanction order Ex.PA qua prosecution of accused Saleem, PW2 Kamrudeen who prepared the scaled site plan Ex.PB, SI Ram Chander PW3 who recorded the formal FIR, PW4 P.N. Pardhan, who lodged the FIR in respect of theft of his 2 motorcycle, ASI Jawahar Lal as PW5, who tested the revolver, PW6 Insp. Anup, the investigating officer and PW7 ASI Jai Parkash, one of the police officials of raiding party. When examined under Section 313 Cr.P.C. the case of the 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. It is apt to mention here that the charges under Section 411 IPC against the respondents were dropped as it was found that in respect of said motor cycles two separate FIRs were found to have been registered and qua the other motor cycles, no proof of theft was produced by the prosecution. Even otherwise, it was categorically observed that the tenor and manner in which the said motor cycles were recovered from the spot, in no way, prove to be in conscious possession of the respondents. For the charge under Section 25 of the Arms Act against respondent Saleem, a perusal of impugned judgment reveals that the test fire was not conducted from the said revolver with a live cartridge but the witness categorically admitted that the test fire was done with a dummy cartridge. This right led to Court below to conclude that the country made pistol allegedly recovered from respondent Saleem was not a fire arm as defined under Arms Act and consequently, he was acquitted of the said charge. The respondent-accused were further charge-sheeted under under Sections 399, 402 IPC. 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 3 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. 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. The observations made by the Court below in para Nos. 21, 22 and 23 while returning verdict of acquittal in respect of respondents are relevant, which are reproduced as under:- “21. In addition to all this if it is presumed that the secret informant had disclosed the information in the manner disclosed in rukka Ex.PC then also the prosecution version is not appealable to reason or logic because according to PW6 secret information was received at 7.30 p.m. and according to PW7 secret information was received at 7.00 p.m. and according to both the witnesses the disclosed place was raided at 8. p.m. Presuming that secret information was received at 7.30 as so disclosed by PW6 then also it was completely half an hour in between reaching the disclosed place and receiving information and according to PW6 on reaching the disclosed place PW6 overheard the conversation of the accused and PW6 is specifically claiming that he heard one of the inmates saying that Saleem you are the leader for today action and Yunis and Bilal will park their motor cycles in front of the passing vehicles and made them to stop and Ikbal and 4 Raju will apprehend the persons to rob them of their belongings. 22. If such conversation was overheard certainly the accused were making preparation to commit dacoity at 8 p.m. when disclosed place was raided whereas according to prosecution version secret information had already informed that the accused persons were planning to commit robbery. When the secret informant had already overheard the conversation before 7.30 there was no sense of repeating the same preparation for such a considerable long time. When the secret information was received at 7.30 certainly secret informant had overheard the conversation before passing the information to the police and it is not appealable to reason or logic that the persons collected there would have continued repeating their preparation upto 8 p.m. when the disclosed place was surrounded by the police and as such again the prosecution version is proved to be an imaginary version. 23. If the accused had planned to commit robbery when the secret informant allegedly overheard their conversation, they could achieve their target up to 8 p.m. when the police party reached there but according to Pws 6 and 7 no such incident of robbery or dacoity or attempt thereof was reported on that day and as such again prosecution version falls to ground” There is another feature which resulted into drawing an adverse 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 5 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, the police party had a private vehicle with them, but neither the name of the driver was disclosed nor he was joined in the raiding party. Even 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 11,2008 JUDGE Jiten