I N THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED: THIS THE 218t DAY OF MARCH, 2011 BEFORE THE HONBLE MR. JUSTICE V. JAGANNATHAN CRIMINAL APPEAL NO.1876/2005 BETWEEN: 1. Sri. Kishore, SI Gurappa Bhosale Aged about 29 years 0cc: Coolie, R/o. Devapur Hatti Tq. Raibag, Dist. Belgaum 2. Sri. Shrishail, S/o. Babu Bhosale Aged 56 years, 0cc: Coolie R/o. Devapur Hatti Tq. Raibag, Dist. Belgaum 3. Sri. Tridev, S/o. Shrishail Bhosale Aged 27 years, 0cc: Coolie R/o. Devapur Hatti Tq. Raibag, Dist. Belgaum 4. Sri. Kashmeer, S/o. Shrishail Bhosale Aged 56 years, 0cc: Coolie R/o. Devapur Hatti Tq. Raibag, Dist. Belgaum 5. Sri. Ravi, Sb. Shrishail Bhosale Aged about 20 years, 0cc: Coolie R/o. Devapur Hatti Tq. Raibag, Dist. Belgaum 6. Sri. Mukhesh Parashuram Garasangi Aged about 20 years R/o. Garasangi, Tq: B. Bagewadi Now at Gokak, Dist, Belgaum APPELLANTS (By Sri. Lingaraj Maradi, Adv. for Sri. Jagadish Patil, Adv.) AND: The State of Karnataka By its State Public Prosecutor High Court Buildings Baangalore — 1. RESPONDENT (By Sri. Anandkumar K. Navalgimath, HCGP) CRL.A FILED U/S. 374(1) CR.P.C AGAINST JUDGMENT DT27.082005 PASSED BY THE DIST. & S.J., & P.O., FAST TRACK COURT, JAMKHANDI IN S.C. NO.73/04 -CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES P/U/S 399 OF IPC AND ETC. THIS APPEAL COMING ON FOR HEARING THIS DAY. THE COURT DELIVERED THE FOLLOWING: JUDGMENT The appellants call in question their conviction in respect of the offences punishable under Section 399 of Cr.P.C and the consequent sentence of one year Ri and fine of Rs.2,000/ imposed upon them by the trial Court. 2. The prosecution case in short is that, on 09.10.2004 at about 7.00 pm, the PSI, Mudhol received information about some persons sitting in the shadow of petrol bunk near Jamakhandi Naka and six persons were found in suspicion manner. Accordingly, the complainant R. K. Patil along with his colleagues came near the petrol bunk and saw 8-9 persons sitting near the shadow of petrol bunk and on seeing them, three persons ran away and six persons were caught by the police officials. in the presence of Panchas. six persons 3 were apprehended were checked and from accused No. 1 a Jambia, from accused No.2, a iron rod and a Jambia each from accused Nos, 3 and 4 and a rod from accused No.5 and chilly powder from accused No.6 were recovered and a case was registered against all the six accused persons for the offence punishable under Section 399 of Cr.P,C. On completion of investigation, charge sheet was filed and accused denied the prosecution case and on behalf of the prosecution eight witnesses were examined apart from four documents being marked and six M,O,s being produced. The statement of accused was recorded and they denied the prosecution case and did not lead any evidence. 3. The learned trial Judge after appreciating the evidence on record, concluded that the accused have committed the offence punishable under Section 399 of IPC and accordingly, convicted them and sentenced them as mentioned earlier, 4. Challenging the judgment of conviction and sentence, the learned Counsel Sri. Lingaraj Maradi for the appellants argued that the trial Court did not appreciate the evidence properly and the prosecution witnesses who are all official witnesses have not deposed consistently in respect of the incident and contradictions and variation in their evidence therefore, renders the testimony of the official witnesses unacceptable and not reliable, The two panchas PWs 1 and 2 turned hostile, No other independent witnesses have been examined to support or corroborate the testimony of PWs 3 to 8. The whole case is highly improbable if we accept the evidence of the official witnesses. Moreover, the accused were said to be found hiding themselves under a tree in a public place and it 6 is impossible for the police to go and arrest the accused when all the accused were armed with the weapons, u+ the police were not armed with any weapons and in such circumstances, it is difficult to imagine that the accused could have meekly surrendered themselves to the police. Where the accused were hiding is also not dearly deposed by the prosecution witnesses and therefore, the accused are liable to be acquitted. Moreover, there is no evidence indicating that the accused were preparing themselves to commit the offence of dacoity and mere possession of weapons with the accused is not sufficient to bring the case within Section 399 of IPC. 5. On the other hand, submission of the learned High Court Government Pleader for the State is that the prosecution has proved its case through the testimony 7 of PWs 3 to 8 who are all police officials and therefore, the conviction is just and proper. 6. Having thus heard both sides, I have carefully gone through the evidence of prosecution witnesses and each of the official witnesses has deposed in different manner with regard to the place where the accused were found hiding and the weapons, which were with the accused. Therefore, it is rather difficult to place reliance on the testimony of the police officials. For instance, PW2 Nagaraj has deposed in his evidence that they went to the place where the accused were hiding and the police surrounded the accused and caught hold all six of them and three persons ran away. This witness has deposed to the fact that they recovered Jarnbia from accused No, I, iron rod from accused No2 and a jambia each from accused No3 and 4, a rod from accused No5 S and chilly powder from accused No.6 in a paper packet at around 7.30 pm. 7. PW4 Nagesh has deposed in his evidence that they all came near petrol bunk and jeep was stopped at 30 meters from the petrol bunk and they went near a tree and saw the accused by the side of the tree sitting and three of them ran away and others were caught. This witness says that all the accused were wearing pant and shirt and does not say as to which of the accused was holding what weapon or what article with him. 8. PW5 - Savalasang has deposed that the police came near the petrol bunk and immediately nine persons who were hiding near the petrol bunk started running and six of them were caught. This witness says that from one accused Jambia was recovered and from accused No.6 a plastic bag containing chilly powder was 9 recovered and the seized items are MOs, 1 to 6. In the cross-examination this witness has stated that, when they came near the petrol bunk, they saw the accused persons hiding near wall. 9. PW6 - Ravi has deposed in his evidence that they got the information that 8-9 persons are sitting near a tree and the police jeep came near the tree, they saw 8-9 persons sitting there, who tried to run away and six persons were caught. This witness also says that M.Os, I to 6 were recovered from the accused. In the cross-examination he has deposed that, on seeing the police, the accused tried to hide themselves behind the tree and katta, 10. PW8 - Rajugouda has deposed in his evidence that he and other officials went near Jamakhandi Naka near the petrol bunk and there, they saw 9 persons and said persons tried to run away and 10 six of them were caught and they recovered MOs, 1 to 6 from all the accused, In the crossexamination, this witness has deposed that he and other officials were hiding by the side of electric pole and then they saw the accused and three of them ran away and others were caught. In the cross examination he has stated that the accused were holding the Jambia inside their body and they were also having the rod tied to their waist and the chilly powder packets were found in pant packets. 11, On careful examination of the aforesaid evidence of the official witnesses, it is clear that not one of them deposes consistently with regard to the place where accused were hiding. It is not clear whether the accused were hiding behind a tree or behind wall or behind electric pole and as per the sketch mark there is no electric pole near the spot nor is there any wall, Second aspect is that the a••ccu•sed were armed with 11 weapons, but when the police went there, there was no resistance on the part of the accused and as rightly argued by the learned Counsel for the appellant, when the accused were armed with the weapons, they would not have kept quite and would have tried to assault the police officials. No such incident has taken place. Whether all the accused were holding Jambias with them in the waist portion or only two of them were holding Janabia is not clear. And that accused were holding the chilly powder in their pant pocket or not, is also not clearly established and apart from all these, the place being the public place, it is rather impossible to accept the version that 6-8 accused persons carrying weapons were hiding near the petrol bunk. No independent witness has been examined. Only the panchas were examined as PWs 1 and 2 and they have not supported the prosecution case. Apart from the above infirmities, the most important ingredient to be established by the prosecution is that the accused were making preparation to commit dacoitv. For this, there is absolutely no evidence either direct or indirect, In the absence of this essential ingredient being established, no offence under Section 399 of IPC can be said to have been established. 12. In this connection, 1 rely on the judgment of Patna High Court in the case of Mohammad Hussain and etc, Vs. State of Bihar reported in 1987 CRIL.LJ. 1391, where it has been observed thus: “Where the prosecution miserably failed to prove that the appellants along with other companions some of whom were armed with fire arms and other weapons had assembled at the lonely orchard in the dead of night for the purpose of committing dacoity and not for any other purpose and there was also no material from which it could be said with any amount of certainty that they had made preparation for committing dacoitv then 13 mere possession of fire arms cannot be sufficient to prove that they intended to commit dacoitv and not for any other offence, In such circumstances, there is no option but to hold that the prosecution has failed to prove the charge under Section 399 or under Section 402 of the Indian Penal Code against the appellants. 1986 Cril.LJ 1031 (Pat> and 1974 Cri,LJ 664 Rel.on,” In the very same decision reference has been made to the judgment of the Apex Court in the case of Chaturi Yadav V. State of Bihar, AIR 1979 SC 1412, wherein the Apex Court has observed thus: “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 I a,m. does not, by itself prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object” 14 Their Lordships have further observed that: “the possibility that the appellants may have collected for the purpose of murdering somebody or committing some other offence cannot be safely eliminated. In another decision of the very same High Court in the case of Gholtu Modi and etc., Vs. State of Bihar reported in 1986 Cri.LJ 1031, it has been held that 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. 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 15 mere fact that the accused persons were found sitting in a lonely place at night in a house which was under 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 Court has further observed thus: - 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.” 13. In the light of the aforesaid decisions as regards the essential ingredients to be proved to make 16 out the case for the offence under Section 399 of IPC, in the instant case, there is lack of evidence in regard to the accused persons being found making preparation for commission of offence of dacoity. For the said reasons and as no independent witnesses being examined, Panchas turning hostile, and the possibility of the accused armed with the offence keeping quiet and surrendering themselves to the police being ruled out, the prosecution, therefore cannot be said to have established the case beyond all reasonable doubt. The accused therefore, are entitled to the benefit of doubt. 14. For the above reasons, the appeal is allowed and the judgment of conviction and sentence passed by the trial Court is set aside. The accused are acquitted of the offence punishable under Section 399 of Cr.P.C and their bail bonds shall stand discharged. 17 15. The fine amount, if any deposited b3 the accused shall be refunded to them. J gab/