Crl. Appeal No. 401-DB of 2007 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 401-DB of 2007 Date of Decision:February 03,2009 1. Mahavir son of Milla Ram, resident of village Narar, Tehsil and District Kaithal. .... Appellant Versus The State of Haryana .... Respondent 2. Crl. Appeal No. 402-DB of 2007 1. Rakesh s/o Balbir Singh, r/o village Harsola, Tehsil and District Kaithal. 2. Anil s/o Bhana, r/o village Geong, Tehsil and District Kaithal. 3. Shiv Parkash @ Shiba s/o Gian Chand, r/o village Geong. ... Appellants. Versus The State of Haryana .... Respondent 3. Crl. Appeal No. 403-DB of 2007 Rajinder @ Billu r/o village Geong, Tehsil and District Kaithal. ... Appellant. Crl. Appeal No. 401-DB of 2007 --2-- Versus The State of Haryana .... Respondent and 4. Crl. Appeal No. 404-DB of 2007 Ram Karan s/o Sunder, r/o village Bhanpura, Tehsil and District Kaithal. ... Appellant. Versus The State of Haryana ... Respondent --- CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Tanu Bedi, S/Shri Arvind Bansal, J.P. Dhull and V.D. Sharma, Advocates for the appellants. Mr. H.S. Sran, Additional Advocate General, Haryana, for the respondent-State, in all the criminal appeals. **** Crl. Appeal No. 401-DB of 2007 --3-- Sham Sunder, J. This judgment shall dispose of Crl. Appeal No. 401-DB of 2007, filed by Mahavir, Crl. Appeal No. 402- DB of 2007, filed by Rakesh, Anil and Shiv Parkash @ Shiba, Crl. Appeal No. 403-DB of 2007, filed by Rajinder @ Billu and Crl. Appeal No. 404-DB of 2007, filed by Ram Karan, accused ( now appellants ) against the judgment of conviction, and the order of sentence dated 05.05.2006, rendered by the Court of Additional Sessions Judge, Kaithal, vide which it convicted them, for the offence punishable under Sections 399 and 402 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment, for a period of ten years each, and to pay a fine of Rs.10,000/- each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of six months each, for the offence, punishable under Section 399 of the Indian Penal Code and further sentenced them to undergo rigorous imprisonment, for a period of five years each, and to pay a fine of Rs.5000/- each, and in default of payment of the same, to undergo further rigorous imprisonment for a period of three months each, for the offence punishable under Section 402 of the Indian Penal Code. Shiv Parkash, one of the appellants, was further convicted and sentenced to undergo rigorous imprisonment, Crl. Appeal No. 401-DB of 2007 --4-- for a period of one year, and to pay a fine of Rs.2000/-, and in default of payment of the same, to undergo further rigorous imprisonment for a period of three months, for the offence punishable under Section 25 of the Arms Act. The substantive sentences of the accused were ordered to run consecutively. 2. The facts, in brief, are that on 16.05.2004, Ganga Bishan, Assistant Sub Inspector, Police Station Sadar Kaithal, was present at bus stand Kaithal, in connection with patrol and detection of crime duty, where he received a secret information that Shiv Parkash alias Shiba, Rajinder, Anil, Ram Karan, Rakesh and Mahavir, were planning in a tube-well room, in the area of Ujhana, to loot the vehicles and were having an esteem car also. Thereafter, Ganga Bishan, Assistant Sub Inspector, told about the secret information, received by him, to other members of the Police party. Three raiding parties were constituted. Manohar Lal, Assistant Sub Inspector, was deputed to raid from the North side of the room, aforesaid. Parma Nand, Assistant Sub Inspector, was deputed to raid from the Eastern side of the room, aforesaid. Ganga Bishan, Assistant Sub Inspector, alongwith the members of the party, was to stand outside the room, aforesaid. Thereafter, the parties reached the spot, in Government vehicles, alongwith the Crl. Appeal No. 401-DB of 2007 --5-- informant. Ganga Bishan, Assistant Sub Inspector, heard the conversation of all the accused, by putting his ear on the window of the room. One boy was saying Rajinder to stop the car, in front of a vehicle. He was also saying that Mahavir was to give a signal, with the torch-light, with a view to stop the vehicles Rakesh and Anil were to enter into the vehicles, after opening the doors thereof. The person, who was giving directions to them, was saying that, he was having a pistol. He was also saying that in this way, they will loot the vehicles of the passersby Ganga Bishan, Assistant Sub Inspector, told the accused from outside that they had been surrounded by the Police parties. Thereafter, Ganga Bishan, Assistant Sub Inspector, alongwith other Police officials entered the room and apprehended the accused. 3. In the first instance, the search of Shiv Parkash @ Shiba was conducted, as a result whereof, one Country made pistol .315 bore, which was loaded with one live cartridge, was recovered and the same was unloaded. Rough sketch of the pistol was prepared. It was converted into a parcel, and duly sealed. Thereafter, the parcel alongwith the cartridge was taken into possession, vide separate recovery memo Ex.PH , attested by the witnesses. Thereafter, the search of Rajinder, accused was conducted, as a result whereof, one Crl. Appeal No. 401-DB of 2007 --6-- iron rod was recovered from his right hand. Rough sketch of the iron rod was prepared, the same was converted into a parcel and taken into possession, vide separate recovery memo Ex.PK. Thereafter, the search of Anil, accused, was conducted, as a result whereof, one dagger (chhura ) was recovered from him. Rough sketch of the same, was prepared , the same was converted into a parcel and taken into possession, vide a separate memo Ex.PM. Rakesh, accused, was then searched and one iron rod was recovered from his possession. Rough sketch of the same was prepared. It was converted into a parcel and taken into possession, vide separate recovery memo Ex.PO. Thereafter, Ram Karan, accused, was searched and one iron rod was recovered from his possession. Rough sketch of the same was prepared. It was converted into a parcel, and taken into possession, vide separate recovery memo Ex.PR. Mahavir, accused was then searched and an iron rod and torch were recovered from his left and right hands, respectively. These articles were converted into parcels, and taken into possession, vide separate recovery memo Ex.PT. The Esteem Car bearing No. DL-1CB- 0446 was also taken into possession, vide separate recovery memo Ex.PU from the spot, under Section 102 of the Code of Criminal Procedure. Crl. Appeal No. 401-DB of 2007 --7-- 4. Ruqa Ex.PE was sent to the Police station, on the basis whereof, the FIR was registered. The site plan of the place of occurrence, with correct marginal notes, was prepared. The accused were arrested. The statements of the witnesses were recorded. The accused were separately interrogated and during the course of interrogation, they made disclosure statements, in the form of confessional statements, before the Police. After the completion of investigation, the accused were challaned. 5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. Charge under Sections 399 and 402 of the Indian Penal Code, against all the accused, as also under Section 25 of the Arms Act, against Shiv Parkash @ Shiba, accused was framed, to which they pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Subhash Chander, Reader to the District Magistrate, Kaithal, (PW-1), who proved the sanction accorded by Shri H.S. Malik, District Magistrate, for launching prosecution under the Arms Act against Shiv Parkash @ Shiba, accused, Kuldeep Singh, Constable, ( PW-2 ), a formal witness, who tendered his affidavit Ex.PB, Joginder Singh, Patwari Halqa Crl. Appeal No. 401-DB of 2007 --8-- Deora Mauja Ujhana, ( PW-3 ), who prepared the site plan Ex.PC, Roshan Lal, Head Constable, ( PW-4 ), a formal witness, who tendered his affidavit Ex.PD, Sube Singh, Assistant Sub Inspector, ( PW-5 ), Bhim Singh, Head Constable, ( PW-6 ), Manohar Lal, Assistant Sub Inspector, ( PW-7 ), who headed one of the parties, and Ganga Bishan, Assistant Sub Inspector, ( PW-8 ), the Investigating Officer, who investigated the case, and prepared various documents. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 7. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. It was stated by them that nothing was recovered from their possession. 8. In their defence, the accused examined Ram Phal, DW1. Thereafter, the accused closed the defence evidence. 9. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. Crl. Appeal No. 401-DB of 2007 --9-- 10. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by the appellants. 11. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. The Counsel for the appellants, submitted that no independent witness, was joined by the Investigating Officer, despite availability and, as such, the case of the prosecution became doubtful. They further submitted that the story projected by the prosecution that Ganga Bishan, Assistant Sub Inspector, overheard the conversation of the accused, while they were sitting in a room to the effect that they were planning to commit dacoity, was most improbable and unnatural. They further submitted that the mere fact that the accused were allegedly found sitting, in a room, with iron rods and a pistol, did not mean that they had assembled there, for making preparation to commit dacoity, as the said place was near the Engineering College and other inhabited locality. It was further submitted by them, that even the owner of the room, where the accused were allegedly found sitting, was not examined. It was further submitted by them that the evidence Crl. Appeal No. 401-DB of 2007 --10-- produced by the prosecution, was unreliable and the trial Court was wrong in recording conviction and awarding sentence. 13. On the other hand, the Counsel for the respondent-State submitted that the evidence produced by the prosecution was rightly found to be reliable, by the trial Court. He further submitted that the accused were involved in so many other criminal cases, and, therefore, were habitual criminals. He further submitted that the trial Court, was right in recording conviction and awarding sentence. 14. No independent witness, was joined, by Ganga Bishan, Assistant Sub Inspector, the Investigating Officer, despite availability, as would be discussed hereinafter. Manohar Lal, Assistant Sub Inspector, ( PW-7 ), during the course of cross-examination, stated that the bus stand, where the secret information was received, was situated in the populated area. He further admitted that the same was surrounded by shops and many persons were present there. He further stated that the Investigating Officer, tried to join the public witnesses, but they refused. He, however, stated that no proceedings were initiated against those persons, who refused to join the investigation. He further stated that even on the way, there were many shops and houses, but no public witness was joined by the Investigating Officer. Ganga Bishan, Crl. Appeal No. 401-DB of 2007 --11-- Assistant Sub Inspector, the Investigating Officer, ( PW-8 ), during the course of cross-examination, stated that the place, where the secret information was received, was thickly populated area and the public persons were present there. He also admitted that so many hotels and shops are situated there. He further stated that he tried to join public witnesses but none prepared to join the investigation. He further stated that he did not initiate proceedings, against those persons, who refused to join the investigation. He also admitted that, on the way, there was a populated area, but no public witness was ready to join. He also admitted that the place of occurrence is in front of the Engineering College, Kaithal. He further stated that he tried to join the persons from the Engineering College, as well as from the hostel, but none was ready. Had any attempt been made by the Investigating Officer, to join independent witnesses and had none been ready to join, he would have certainly mentioned their names either in the case diary or in the ruqa and other documents, prepared, at the spot. However, their names were not mentioned in any of the aforesaid documents. Even no action was taken against the persons, in accordance with the provisions of law, who refused to join the raid. This clearly goes to show that no attempt, whatsoever, was made by the Investigating Officer, to join the independent witnesses. Crl. Appeal No. 401-DB of 2007 --12-- The explanation, furnished by Ganga Bishan, Assistant Sub Inspector, the Investigating Officer, ( PW-8 ), and Manohar Lal, Assistant Sub Inspector, ( PW-7 ), to the effect that efforts were made to join independent witnesses, but none was ready, therefore, appears to be a tissue of lies, just concocted to wriggle out of the predicament, in which they were placed. It is no doubt, true that, in the absence of joining of an independent witness, the evidence of the official witnesses cannot be discarded, merely on account of their official status. Their evidence, in these circumstances, is required to be scrutinized carefully and cautiously. If the Court, after such scrutiny, comes to the conclusion, that the same is reliable, then mere non-joining of independent witness, pales into insignificance. The other evidence, produced by the prosecution, as would be discussed hereinafter, on scrutiny, has been found to be unreliable. Since an independent witness was not joined, despite availability, though there was sufficient time, with the Investigating Officer, to do so, the case of the prosecution became doubtful. In State of Punjab v. Ram Chand 2001(1) RCR ( Criminal ) ( DB ) ( P&H), no independent witness was joined despite availability, at the time of effecting recovery. In these circumstances, it was held that it was imperative, in the given circumstances, to join and Crl. Appeal No. 401-DB of 2007 --13-- examine an independent witness to vouchsafe the fair investigation. On account of this reason, the accused was held entitled to be given the benefit of doubt. In State of Punjab v. Bhupinder Singh, 2001(1) RCR ( Criminal ), 356 ( DB ) ( P&H ) , no independent witness was joined, though the recovery was effected, in a busy locality. Under these circumstances, it was held by this Court that the case of the prosecution became doubtful. In Ritesh Chakarvarti v. State of Madhya Pradesh, 2006(4) RCR ( Criminal ) , 480 ( SC ), no effort was made to join an independent witness despite availability. The names of the persons, from the public, who were present and asked to join the investigation, were not recorded in any document. Under these circumstances, it was held that the case of the prosecution was doubtful and ultimately, the accused was acquitted. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the instant case. As stated above, a cloud of doubt, was cast, on the prosecution case, on account of non-joining of an independent witness, despite availability, at the time of the alleged raid. The trial Court failed to take into consideration, this aspect of the matter, as a result whereof, it fell into an error in recording conviction and awarding sentence. Crl. Appeal No. 401-DB of 2007 --14-- 15. Now coming to the factum, as to whether, the accused were allegedly making preparation to commit dacoity, while sitting in a room, armed with iron rods, a dagger, and a country made pistol, it may be stated here, that the same is not proved, as would be discussed hereinafter. Sections 399 and 402 of the Indian Penal Code, are confined to making preparation for commission of dacoity and have no reference to any other offences. Therefore, 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. Though the word “preparation” has not been defined, in the Penal Code, 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 mere fact that some persons were found sitting at 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 Crl. Appeal No. 401-DB of 2007 --15-- preparation for commission of dacoity. 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. In the instant case, at about 7.30 PM, the accused were allegedly found sitting in the tube-well room, just near the Engineering College having a hostel. Some of the accused were allegedly found in possession of iron rods and one of them was allegedly found in possession of a country made pistol. Manohar Lal, Assistant Sub Inspector, PW-7, during the course of cross-examination stated that he did not overhear the conversation of the accused, when they were allegedly making preparation to commit commit dacoity, but was told about the same by Ganga Bishan, Assistant Sub Inspector, ( PW-8 ). Gaga Bishan, Assistant Sub Inspector, ( PW-8 ), however, did not state that he told the aforesaid factum to Manohar Lal, Assistant Sub Inspector. The evidence of Manohar Lal, Assistant Sub Inspector, in this regard, therefore, can be said to be hearsay and, thus, inadmissible, to prove the charge against the accused. Crl. Appeal No. 401-DB of 2007 --16-- 16. Now coming to the statement of Ganga Bishan, Assistant Sub Inspector, ( PW-8 ), who stated, during the course of cross-examination, that he put his ear, near the ventilator which was described by him, as a window, of the room, aforesaid and heard the conversation, it may be mentioned here that the same is unreliable. He stated that the conversation of the accused was very low, but he heard the same. The evidence of Ganga Bishan, Assistant Sub Inspector, ( PW-8 ), in this regard, does not inspire confidence. He did not show any window, on the Eastern side of the room in the site plan, Ex.PE. He also did not show in the site plan, that the electric bulb was glowing, in the room. He also did not show the distance between the ventilator/window from the place, where the accused were allegedly found sitting in the room. If the accused were allegedly conversing, in a very low tone, it was not at all possible for Ganga Bishan, Assistant Sub Inspector, ( PW-8 ), to overhear their conversation in a proper manner. His statement does not find corroboration, through any other evidence. Even the owner of the tube-well room was not located, nor his statement was recorded. The place, where the accused were allegedly found sitting, at about 7.30 PM, also could not be said to be a secluded one, away from the locality, but, on the other hand, as stated above, was near the Crl. Appeal No. 401-DB of 2007 --17-- Engineering College, which was also having a hostel. The story, set up by Ganga Bishan, Assistant Sub Inspector, in his statement, while appearing in the witness box as, PW-8, that though the accused were talking in a very low tone, but he overheard them while making preparation to commit dacoity, appears to be highly doubtful. The evidence of Ganga Bishan, Assistant Sub Inspector, ( PW-8 ), on this aspect of the matter, therefore, could be said to be not at all convincing. Even if, it is assumed, that the accused had assembled, in the aforesaid room, at about 7.30 PM, near the Engineering College, which was having a hostel, that did not by itself prove, that they had assembled there for making preparation to commit dacoity. The possibility that they might have collected there for the purpose of murdering somebody or committing some other crime, could not be safely eliminated. In Chaturi Yadav and others v. State of Bihar, AIR 1979 Supreme Court 1412, eight persons, including the appellant were found in the school premises, which was quite close to the market at 1 AM, and that some of them were armed with guns, some had cartridges and others ran away. In these circumstances, it was held that their mere presence, with some weapons, in the school premises at 1 AM, did not, by itself, prove that they assembled there for making preparation, to commit dacoity. Ultimately, Crl. Appeal No. 401-DB of 2007 --18-- the appellants were acquitted of the offences punishable under Sections 399 and 402 of the Indian Penal Code by the Apex Court. In Gholtu Modi etc. v. State of Bihar, 1986 Crl. L.J. 1031, some persons were found present, with weapons, in a house at night, which was under construction. In these circumstances, it was held that their mere presence with weapons, at that place, at night, was not, by itself, sufficient to prove that they had assembled there, for the purpose of making preparation to commit dacoity. In Brijlal Mandal and others v. State of Bihar, 1978, Criminal Law Journal, 877, the appellants were found sitting in the waiting hall of a Railway Station, armed with various types of weapons. They were apprehended, but there was no proof, that they had assembled for making preparation, to commit dacoity and no other offence. In these circumstances, it was held that they did not commit the offences punishable under Sections 399 and 402 of the Indian Penal Code. Ultimately, they were acquitted. The facts of the aforesaid cases are almost similar and identical to the facts of the instant appeals. On the basis of the evidence of Manohar Lal, Assistant Sub Inspector, ( PW-7 ), and Ganga Bishan, Assistant Sub Inspector, ( PW-8 ), the prosecution miserably failed to prove that the accused had assembled, in the aforesaid room, at about 7.30 PM, near the Engineering Crl. Appeal No. 401-DB of 2007 --19-- College, which was having a hostel, for the purpose of making preparation to commit dacoity. No other evidence was produced by the prosecution, to prove that the accused had assembled, at the aforesaid place, for making preparation to commit dacoity. The trial Court failed to take into consideration, this aspect of the matter, and, thus, fell into an error in recording conviction and awarding sentence. 17. Shiv Parkash alias Shiba was also allegedly found in possession of a country made pistol .315 bore alongwith one live cartridge of the same bore. Bhim Singh, Head Constable, ( PW-6 ) was posted as Armourer in Police Line Kaithal. He mechanically tested the pistol, and gave his report Ex.PF. However, during the course of cross- examination, it was stated by him, that the pistol was only mechanically examined by him, but it was not tested by way of firing the shots therefrom.