wa“. grwmw" W4Ha;‘ m.W w. .‘ u. . i ‘Ad i CRIMINAL APIPEAL No. 153 of 2007 Appellants l. Mohd. Ful @ Javed S/o. Mohd. Naim, Aged about — 23 yearsf R/o. Motijhil, Kachchi Sara-if”- Chakjasu, P.S. Mithunpara, Distt. Muzaffarpur, Bihar. 2. Mohd. Raju @ Kalamuddin, S/o. Mohd. Shahabuddin @ Hani Painter, aged about 22 years, R/o. near Amar‘ Talkies, Chakjasu, P.S. Mithunpara, Distt. Muzaffarpur, Bihar. 3. Mohd. ed @ Kali, S/o. Mohd. Anwar, age 32 year, R/o. Rambagh, Kanhaulidih, P.S. Mithun’para, Distt. Muzaffarpur, Bihar. Ub CRIMINAL APPEAL NO. 90 of 2006 E 'E € , Appellant _ Aj muddin Qureshi @ Ajju Son of .E Riyazuddin Qureshi about 22 years, Re sident of —‘ Kalinagar Pandari Near ._‘ Gautam Kirana Shop P.S. Civil Line Réipur, Tahsil and District Raipur .(C 3) st“ VERSUS Respondent ' St 1te of Chhattisgarh, 1&3 T ough District Magistrate, Raipur, \Di tt. Raipur (CG) XI-HC—22 W mwumm "w 2', amP w ‘1 Present: Shri'Sunil Sahu, ‘Ad‘ 90/06. Shri C.R. Sahu,»Adv‘ 153/07: Shri Arun Sao, GA for the. State. ORA] (14th Dhirendra Mishra, J ’ Cr‘A.No., 90/06 p N Mohd. Ful @ Javed, Mohd. Kali 85' Mohd. Farukh are judgment as both these judgment dated 30th Janu whereby learned III Addi convicted all the appellant '‘‘wmv mm1 ‘':l‘x x‘m"mu ”’fmgv ‘ Mmm” “v q, locate for the appellant in Cr.A.N0. )cate for the appellants in Cr.A.No. Qureshi @ ‘Ajju & Cr‘.A. '. ferred by. appellant Ajimuddin 4 JUDGMENT tember 2007) 153/07 preferred by appellants ju @ Kalamuddin, Mohd. Ubed @ ing disposed of by this common appeals arise of the impugned ry 2006 passed in S.T.No. 149/05 onal Sessions Judge, Raipur has under Sections 402 of the Indian 'wnmp- s p a e 4. Mohd. Famkh, -S/o. Mohd Kayyum, age 24 years, R/o Kanhaulidih, RS. Mithunpara, ‘ Distt. Muzaffarpur, Bihar. ‘ VERSUS . a {Respondent l State of Chhattisgarh, ‘ough District Magistrate, Raipu’r. Th XI-HC—22 'Fv‘I‘ W‘“m'H “mm Penal Code [and sentenced each of them to undergo R.I. for flv V years, pay a fine of Rs.2,00 3/— and in default of payment of fine to undergo'additional R.I. for one year. 2: Charge sheetrwas tiled against the appellants under ‘ Sectionsv399, 402 of the IPO and Section 25 of the Arms Act on v a: r -the* allegation that on 25.2.2005 the crime squad of Raipur n that five persons have assembled received a r secret ‘informatk §in the house of appellant the A.S.I. Amol Singh (PW-8) along With Head Constable and o:her Constables left for the house of appellant Ajimuddin. After Azimuddin and are planning to ' commit da‘coity, whereupor. ““mr.v ‘v ‘ mm‘ 'mw"mm ‘ " . gm” mM” , uW ‘ - reaching his house, they overheard talks of the inhabitants and learnt that they were planning to commit dacoity in the hot se of any big businessman. After: surrounding the house, the accused persons were apprehended and on interrogation they admitted that they have come from Bihar to Raipur to comm:t dacoity. ’During investigation a pistol with magazine having five live cartridges and one empty V were seized'from possessicn of appellant Mohd. Ful @ Javed under EXP/4, one coun:ry made revolver with two live cartridges from accused Mohd. Raju @ Mohd. Kalamuddin under EXP/5, one country made pistol with two live cartridges from accused Mohd. Umed @ Kali under EXP/6, one buttoned {xiv-vs: ’ 4m"> e XI-HC-22 mi‘kmnupwvv WW ‘muupm ' wu— 1 ' mm ma§a 3. After investlgatlon c arge sheet was filed agalnst all the «y? accused/appellants under the aforesaJd secuons Durmg tnal eight Wltnesses were exam ed by the prosecutlon. The accused persons in their stateme ts recorded ‘under’Section 313 of ‘Cr.P.C.' denied the allegat ons appearing against them in the prosecutio‘n case and plea ed innocence and false implication. However, learned’trial'Co rt while acquitting them of charge under Sections 399 of IPC nd 25 of Arms Act, convicted them under Section 402 of the ’IPC and sentenced as mentioned above. 4. Learned counsel for appellants submit that there i§‘ no evidence, available n record to show that the accused/appellants were fact planning to commit dacoity . and none of the witnesses has stated that they overheard the accused persons planni 'to commit dacoity. They. were implicated in the said offen e on the basis of alleged recovery of Weapons, however, the wit esses of recovery have also turned hostile and they have no . supported the prosecution case, therefore, the learned trial ourt acquitted the accused persons of charges under Section 3 9 of IPC and Section 25 of the Arms Act. The appellants have een convicted solely on the ground knife from? accused Mohd. Farukh under EXP/7 and one swordstick was seized from accused Ajimuddin under EX.P/ 8. um. ::. . ,-.l...,, w. .w A. ,_ e ‘ o n XI-HC—22 wpigwmwpmmwmrw. w,‘ . .n that they were arrested frcm thehouse of appellant Ajimuddin on 25.1.2005,- they could not explain as to in whose marriage they had come from Bihar ,adduced by Aj1mudd1n tl' famlly and they reached there as thelr guests trial Court held that ev1dence of the nds unrebutted. that the accused persons assembled at the house of Ajimuddin for planning to commlt dac01ty as they w ba31s of above, the learned prOSecutlon Wltnesses stc 6. On the other h State / respondent supporte Court. 7. I have heard learned the material available or judgment. to Raipur and no evidence could be at there was any marr1age 1n hls Thus on the re live in number and accordingly, 'conv1cted them under Sect on 402 of the IPC. ‘wWrm«e- ;'"%i‘"'mw‘wr~vzI| W’E‘w'1arv1xwvvw- - . 5. ' ’ Learned counsel for the appellant placed reliance on the judgment in‘ the matter of haturi Yadav and others Vs. State of Bihar reported in AIR 1 79 SC 1412 for and, . learned counsel counsel for the parties and perused L record including the impugned ,,..n the d impugned judgment of the trial .. pu“... 4v,» . miiw‘vw'v iwwmy ' V., . ‘... syn ‘ v h’W%i§b:‘r~w1vnw- " ' W”” WWW” MT ’V »",‘., 9. In the instant ‘ca s also the allegation is that the appellants were five in n mber, they had assembled in the s Ajimuddin, they were overheard; by the police party planni g to commit dacoity, country made pistols, cartridges and. sw rdstick were recovered from them, they could not give any ex anation for their assembly and had , allegedly admitted before the police the crime in question. However, there is not "iota .of evidence that they wer planning to commit dac ity as none of the prosecution witnesses overheard them anning to commit dacoity and the trial Court merely on the gr und that the appellants have failed to prove the purpose for w ich they had come to Raipur from Bihar and assembled in th house of Ajimuddin, has drawn an inference that they had in fact assembled to make a plan for t a e l XI-HC-22 fawm ma%a Q a: am em 8. In the matter of Ch Court Whlle reversmg t e Judgment of conv1ctlon under Sectlons 399 and 402 of IP 1n paragraph 4 has held thus. 5‘4. ‘ The evidencé led by the prosecutlon merely 'shows that e1 ht persons were found 1n the a I school premise Some of them were armed Wlth V r :guns, some h cartr1dges and other ran away X J fv The mere fact hat these persons were found at 1 A M does not by 1tse1f prove that the , $1 , appellants ha assembled for the purpose of 7‘ commlttlng da 01ty or for makmg preparatlons to accomphsh at object " XI—HC-22 eals are allowed. Conviction of the '02 of the IPC and sentence passed ~ *‘i‘hey‘be set at liberty for- 'ay are acquitted of‘the above charge. 'case. . ‘%,. a. r/ V1 ¢ommitting dacoity, whick cannot be sustained. v 10 In_the result,‘the ap appellants under Section thereon,"are set aside; 'Tht is a perverse finding and as such, l :hwith if not required in any other \x Sd/- Dl‘nirendra Mishra >r\ Judge “‘ffim‘mtvu’ ’w‘m3mwn t imH mum ‘ ”