[Cites 40, Cited by 0]
Gujarat High Court
Arvindsingh Gangasingh Solanki vs State Of Gujarat on 6 April, 2026
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/412/2005 JUDGMENT DATED: 25/03/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 412 of 2005
With
R/CRIMINAL APPEAL NO. 715 of 2005
With
R/CRIMINAL APPEAL NO. 1139 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
=========================================
Approved for Reporting Yes No
=========================================
ARVINDSINGH GANGASINGH SOLANKI & ORS.
Versus
THE STATE OF GUJARAT
=========================================
Appearance in CR.A 412/05:
MR PRATIK BAROT with MS SMRITI K CHAUHAN (17343) for the
Appellant(s) No. 1,2,3
MS JYOTI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
Appearance in CR.A 715/05:
MR PRATIK BAROT with MS SMRITI K CHAUHAN (17343) for the
Appellant(s) No. 1
MS JYOTI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
Appearance in CR.A 1139/05:
MS JYOTI BHATT, APP for the Appellant(s) No. 1
MR PRATIK BAROT with MR KI KAZI for the
Opponent(s)/Respondent(s) No. 1,2,3,4
=========================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 25/03/2026
COMMON JUDGMENT
1. Criminal Appeal no.412 of 2005 was filed by the
appellants - original accused nos.1, 2 and 3, while
Criminal Appeal no.715 of 2005 was filed by the appellant
- original accused no.4 and Criminal Appeal no. 1139 of
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2005 had been filed by the State for enhancement of the
sentence. The judgment and order of conviction and
sentence dated 28.02.2005 passed by the learned
Additional Sessions Judge, Ahmedabad City in Sessions
Case no.51 of 2004 has been impugned. The accused
persons were charged under Section 399 of the Indian
Penal Code, 1860 (hereinafter referred to as "IPC" for
short), Section 25(1) of the Arms Act and Section 135 of
the Bombay Police Act.
1.1 The accused nos.1 to 3 were sentenced to undergo four
years rigorous imprisonment with fine of Rs.2,500/- and
in default of payment of fine, to further undergo rigorous
imprisonment of three months for the offence punishable
under Section 399 of the IPC. The accused nos.1 to 3
were further sentenced to undergo two years rigorous
imprisonment for the offence punishable under Section
25(1B)(a) of the Arms Act, and also sentenced to undergo
one year rigorous imprisonment for the offence
punishable under Section 135(1) of the Bombay Police
Act. The sentences for each accused were ordered to run
concurrently.
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1.2 The accused no.4 was sentenced to undergo two years
rigorous imprisonment with fine of Rs.2,500/- for the
offence punishable under Section 399 of the IPC, and in
failure to pay the fine, to undergo rigorous imprisonment
of three months.
2. Facts, in nut-shell, are that on 02.06.2003, FIR no. I-
7/2003 came to be registered with District Crime Branch
at Ahmedabad for the offence punishable under Section
399 of the IPC, Section 25(1) of the Arms Act and Section
135 of the Bombay Police Act. It is the case of the
prosecution that the District Crime Branch had received
information that the named accused persons will
assemble opposite to Natraj Hotel, Naroda Patiya three
cross roads between 06:00 p.m. to 09:00 p.m. on
02.06.2003. As per the information, they were to meet
there to hatch conspiracy to commit dacoity.
2.1 It is the case of the prosecution that at about 08:45 p.m.
on 02.06.2003, three persons got down from an auto
rickshaw, other two persons came from the other side
walking and all assembled on the main road opposite to
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Natraj Hotel at Naroda Patiya. As soon as the accused
persons assembled, the District Crime Branch
apprehended them alleging that the accused were armed
with weapons and hence, were preparing to commit
dacoity.
2.2 The police arrested them under the accusation that they
were preparing to commit offence of dacoity at Sahid Vir
Petrol Pump at Dehgam. According to the prosecution,
the accused were arrested from the open main road
going to Dehgam, where from the said petrol pump was
about 28 kms. away.
2.3 The charge-sheet was filed. As the offences in the
charge-sheet were exclusively triable by the Court of
Sessions, the learned Magistrate under Section 209 of the
Code of Criminal Procedure, 1973 committed the case to
the Hon'ble Sessions Court by an order dated 11.09.2003
and the same was registered as Sessions Case no.51 of
2004. Thereafter, the charge was framed on 30.06.2004.
The accused not having pleaded guilty, the case was
opened by the prosecution.
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3. Heard learned advocate Mr. Pratik Barot with learned
advocates Ms. Smriti Chauhan and Mr. K.I. Kazi for the
accused and Ms. Jyoti Bhatt, learned APP for the State.
4. Mr. Pratik Barot, learned advocate for the accused has
submitted that the prosecution case suffers from serious
infirmities and inconsistencies and the evidence led by
the prosecution witnesses does not inspire confidence so
as to sustain the conviction recorded by the learned Trial
Court. Mr. Barot submitted that not a single penny was
recovered from the present appellant as accused, nor the
accused were apprehended from any private vehicle
while moving towards the direction of the said petrol
pump to cover a distance of about 28 kms. from the
Natraj Hotel, which makes the prosecution story highly
doubtful. Mr. Barot submitted that looking to the
deposition of the witnesses, especially the police
personnels, huge contradictions have arisen as to the
arrival of the accused at the so called Natraj Hotel and
the statement of each new witness differs from that of
the previous witness and time of arrival of the accused at
the alleged place was itself uncertain. Learned advocate
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Mr. Barot submitted that time factor becomes very
important in such a case and a big time gap of more than
five hours can be seen from the deposition of the
Investigating Officer and the Panch at the so-called petrol
pump. Learned advocate Mr. Barot further submitted that
according to the deposition of PW6, the Investigating
Officer was present at the office of the Crime Branch
between 10:30 a.m. to 03:00 p.m. on 03.06.2003.
Panchnama was completed at the petrol pump by 12:30
on 03.06.2003. Hence, creates doubt to the Panchnama
drawn at the petrol pump on 03.06.2003 which was at a
distance of 28 kms. from the office of Crime Branch.
Learned advocate Mr. Barot submitted that out of two
Panchas for the recovery of Muddamal articles, one
turned hostile and the second one was not examined.
This again creates doubt as to the credibility of the
witnesses. Moreover, what weapon was recovered from
which of the accused does not get clear from the
deposition of the Panch. Learned advocate Mr. Barot
stated from the deposition of the Panchas that only their
signatures were obtained on the plain papers, again
creating doubt in the story of the prosecution. Learned
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advocate Mr. Barot submitted that the deposition of the
complainant itself differs from the deposition of the other
police witnesses about the number of vehicles used in
the raid and that except one, no other independent
witness was examined. Learned advocate Mr. Barot
submitted that if the deposition of the complainant as
leader of raiding team is be believed, then the entire
Panchnama at the so called Natraj Hotel itself would
prove no case of conviction and if the Investigating
Officer is believed, the entire complaint and the
Panchnama becomes invalid. If PW6 is believed, the
entire process of Panchnama at the petrol pump turns
invalid. Thus, in the present case, if deposition of one is
considered, the other stands wrong thus creating a big
doubt to place reliance on the said witnesses.
4.1 Learned advocate Mr. Barot submitted that the fifth
accused is just a creation of the police to make the
evidence stand under Section 391 IPC. The accused were
neither apprehended from the place of offence, nor were
found going or moving in the direction of the so called
petrol pump. It is submitted that thus, the ingredients of
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Section 399 IPC are not established. The evidence on
record is insufficient to bring home the guilt of the
accused and therefore, the conviction recorded by the
learned Trial Court Judge cannot be sustained in the eyes
of law. It is, therefore, submitted that the appeals
preferred by the accused deserve to be allowed and the
impugned judgment and order of conviction and
sentence passed by the learned Trial Court Judge may be
quashed and set aside.
4.2 Advocate Mr. Barot for the accused further stated that
the prosecution was required to prove the case of
preparation for dacoity by five or more persons and to
drag the case under Section 399 of IPC illusion of the fifth
person present at the spot had been created by the
leader of the trapping party and his team members and
thus, submitted that unless the vital ingredients
necessary for the preparation for dacoity are not proved
by the prosecution, no conviction can follow.
4.3 Learned advocate Mr. Barot has relied upon the decisions
in the case of (i) Mahabir Singh & Ors. vs. State of
Haryana, High Court of Punjab and Haryana dated
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14.03.2023, (ii) Sukhlal Banshi Lodhi & Anr. vs. State
of Madhya Pradesh, High Court of Madhya Pradesh
dated 26.09.1997, (iii) Mohan Singh & Anr. Vs. State
of Punjab, High Court of Punjab and Haryana dated
30.11.2022, (iv) Kailash Dheemar vs. State of
Madhya Pradesh, High Court of Madhya Pradesh dated
06.01.2022, (v) Santosh Kumar and Etc. vs. State of
Chhattisgarh, High Court of Chhattisgarh dated
13.01.2006, (vi) Subhash Hariram Rajbhar & Ors. vs.
The State of Maharastra, High Court of Maharastra
dated 05.06.2007, (vii) Lal Bahadur Choudhary and
Anr. vs. State of Bihar, High Court Judicature at Patna
dated 27.08.2025, (viii) Latifnagodar Hayat Sindhi &
Anr. vs. State of Gujarat, High Court of Gujarat, 2024
(0) AIJEL-HC 248472, (ix) Jasbir Singh @ Javri @ Jabbar
Singh vs. State of Haryana, High Court of Punjab and
Haryana, 2015 (0) AIJEL-SC 56420, (x) Chaturi Yadav v.
State of Bihar, 1979 (0) AIJEL-SC 4988, (xi) Shaikh
Mohammed Naushad v. State of Gujarat, 2025 (0)
AIJEL-HC 251336, and (xii) Hari S/o Chandran v. The
State of Kerala, High Court of Kerala at Ernakulam
dated 14.1.2026.
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5. Ms. Jyoti Bhatt, learned APP for the State submitted that
the offence was proved against the accused persons, and
looking to the gravity and seriousness of the offence, the
sentence imposed by the learned Trial Court is
inadequate and does not commensurate with the nature
of the crime committed by the accused. Ms. Bhatt,
learned APP has submitted that the present case is not
the one, wherein any leniency ought to have been shown
to the accused persons. The evidence on record clearly
establishes that the accused persons had hatched a
criminal conspiracy and were armed with deadly weapons
with the intention of committing the offence. Such
conduct reflects the serious nature of the crime and
warrants a stringent approach while imposing
punishment. Ms. Bhatt, learned APP has submitted that
the learned Trial Court Judge has erred in showing undue
leniency to the accused persons while determining the
quantum of sentence. Such leniency is not in the interest
of justice, particularly in view of the gravity and
circumstances of the offence. Ms. Bhatt, learned APP has
further submitted that the learned Trial Court Judge has
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also erred in directing that the sentences awarded for
different offences shall run concurrently. In the facts and
circumstances of the case, separate sentences ought to
have been imposed for each offence in accordance with
law, so as to adequately create deterrence. Ms. Bhatt,
learned APP has submitted that in offences of such
nature, the Court is required to deal with the accused
persons with appropriate strictness so as to uphold the
rule of law and to serve the ends of justice. Ms. Bhatt,
learned APP has submitted that merely because the
accused persons do not have any past criminal
antecedents, it cannot be a valid ground for showing
leniency. The circumstances of the present case disclose
several aggravating factors, which required the learned
Trial Court Judge to impose maximum sentence. Ms.
Bhatt, learned APP has submitted that the defence has
not been able to point out any mitigating circumstances,
which would justify imposition of a lesser sentence upon
the accused persons. Ms. Bhatt, learned APP has,
therefore, submitted that the judgment and order of
conviction and sentence passed by the learned Trial
Court Judge is otherwise erroneous, unjust and improper
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to the extent of the sentence imposed, and therefore, the
same deserves to be interfered with by this Court by
suitably modifying and enhancing the sentence in
accordance with law. Thus, Ms. Bhatt, learned APP prayed
that the appeal preferred by the accused be dismissed
and further to enhance/modify the sentence suitably.
6. Heard the arguments canvassed by learned advocate Mr.
Pratik Barot for the accused and Ms. Jyoti Bhatt, learned
APP for the State, perused the record and proceedings
and testimony of the witnesses.
7. The learned Additional Sessions Judge, Ahmedabad City,
while convicting accused nos.1 to 3, after considering the
rival submissions of the parties for passing the sentence,
has considered the aspect of punishment in following
terms:-
"Having considered the rival submissions, it
is obvious that the offence involved is
serious, inasmuch as, both the accused
Nos.1 and 3 were found in possession of
loaded pistols. However, it appears that no
previous antecedents emerge qua any of
the accused herein. The accused have not
shown any violent tendency and looking to
the facts and circumstances herein where
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no attempts have been made by the
accused to use the weapons in the course
of the raid, I am of the opinion that some
leniency is required to be shown qua the
accused and in light of such facts and
circumstances, I pass the following final
order:-
ORDER
The accused Nos.1 to 3 are hereby
convicted and ordered to undergo rigorous
imprisonment for a period of four years and
are fined an amount of Rs.2,500-00 each
for having committed an offence punishable
under Section 399 IPC. Upon failure to pay
the fine so imposed, each of the accused is
ordered to undergo further rigorous
imprisonment for three months. The
accused Nos.1 and 3 are also hereby
sentenced to undergo rigorous
imprisonment for two years for having
committed an offence punishable under
Section 25(1B)(a) of the Arms Act. The
accused Nos.1 to 3 are also sentenced to
undergo rigorous imprisonment for one
year for having committed an offence
punishable under Section 135(1) BP Act. All
the sentences are to run concurrently. The
period spent by the accused in judicial
custody is ordered to be treated and given
set off while computing the total period of
sentence. The accused No.4, on the other
hand, is sentenced to undergo rigorous
imprisonment for two years considering the
facts and circumstances emerging herein
and is also ordered to pay fine of Rs.2,500-
00 for having committed an offence
punishable under Section 399 IPC and on
failure to pay the fine so imposed, the
accused No.4 is ordered to undergo further
rigorous imprisonment for three months.
The period spent by the accused No.4 in
judicial custody is ordered to be given set
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off while computing his sentence. The
accused No.4 is currently on bail and is
ordered to be taken into judicial custody.
The muddamal is ordered to be
appropriately disposed of."
8. In the case of Shaikh Mohammed Naushad (supra), a
judgment delivered by this Court, as has been relied
upon by learned advocate Mr. Barot along with the
above-referred judgments, this Court had dealt with the
appeal filed by the State against sentence under Section
377 of the Cr.P.C. for enhancing the sentence. The
observations citing the judgment of the case in Shaikh
Mohammed Naushad (supra) are reproduced
hereunder:-
"9. The prayer has been made under
Section 377 of Cr.P.C. by filing appeals for
enhancing the sentence. Section 377 of
Cr.P.C. is reproduced hereinunder for
appraisal of the evidence on record vis-a-vis
the defence raised by the accused during
the trial in context with the facts of the
case, while appreciating the law with regard
to the conviction of the accused, when
prayer is made simultaneously for acquittal.
"377. Appeal by the State Government
against sentence-
(1) Save as otherwise provided in sub-
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section (2), the State Government may, in
any case of conviction on a trial held by any
Court other than a High Court, direct the
Public Prosecutor to present [an appeal
against the sentence on the ground of its
inadequacy-
(a) to the Court of Session, if the sentence
is passed by the Magistrate; and
(b) to the High Court, if the sentence is
passed by any other Court.
(2) If such conviction is in a case in which
the offence has been investigated by the
Delhi Special Police Establishment,
constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make
investigation into an offence under any
Central Act other than this Code, [the
Central Government may also direct]
[Substituted by Act 45 of 1978, Section 29,
for "the Central Government may direct",
w.e.f. 18.12.1978.] the Public Prosecutor to
present [ an appeal against the sentence on
the ground of its inadequacy-
(a) to the Court of Session, if the sentence
is passed by the Magistrate; and
(b) to the High Court, if the sentence is
passed by any other Court.
(3) When an appeal has been filed against
the sentence on the ground of its
inadequacy, the Court of Session or, as the
case may be, the High Court shall not
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enhance the sentence except after giving
to the accused a reasonable opportunity of
showing cause against such enhancement
and while showing cause, the accused may
plead for his acquittal or for the reduction
of the sentence.
(4) When an appeal has been filed against a
sentence passed under section 376, section
376A, section 376AB, section 376B, section
376C, section 376D, section 376DA, section
376DB or section 376E of the Indian Penal
Code, the appeal shall be disposed of within
a period of six months from the date of
filing of such appeal.]"
9.1 The Hon'ble Supreme Court has
referred to the case of Soman vs. State of
Kerala, [(2013) 11 SCC 382] and Alister
Anthony Pareira v. State of Maharashtra
[(2012) 2 SCC 648] and has made
observations in Paragraphs 10, 11, 12, 13
and 14 as under :-
"10. Currently, India does not have
structured sentencing guidelines that have
been issued either by the legislature or the
judiciary. However, the Courts have framed
certain guidelines in the matter of
imposition of sentence. A Judge has wide
discretion in awarding the sentence within
the statutory limits. Since in many offences
only the maximum punishment is
prescribed and for some offences the
minimum punishment is prescribed, each
Judge exercises his discretion accordingly.
There cannot, therefore, be any uniformity.
However, this Court has repeatedly held
that the Courts will have to take into
account certain principles while exercising
their discretion in sentencing, such as
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proportionality, deterrence and
rehabilitation. In a proportionality analysis,
it is necessary to assess the seriousness of
an offence in order to determine the
commensurate punishment for the
offender. The seriousness of an offence
depends, apart from other things, also upon
its harmfulness.
11. This Court in the case of Soman Vs.
State of Kerala [(2013) 11 SCC 382]
observed thus :
"27.1. Courts ought to base sentencing
decisions on various different rationales -
most prominent amongst which would be
proportionality and deterrence.
27.2. The question of consequences of
criminal action can be relevant from both a
proportionality and deterrence standpoint
27.3. Insofar as proportionality is
concerned, the sentence must be
commensurate with the seriousness or
gravity of the offence.
27.4. One of the factors relevant for judging
seriousness of the offence is the
consequences resulting from it.
27.5. Unintended consequences/harm may
still be properly attributed to the offender if
they were reasonably foreseeable. In case
of illicit and underground manufacture of
liquor, the chances of toxicity are so high
that not only its manufacturer but the
distributor and the retail vendor would
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know its likely risks to the consumer.
Hence, even though any harm to the
consumer might not be directly intended,
some aggravated culpability must attach if
the consumer suffers some grievous hurt or
dies as result of consuming the spurious
liquor."
12. The same is the verdict of this Court in
Alister Anthony Pareira Vs. State of
Maharashtra [(2012) 2 SCC 648] wherein it
is observed thus:
"84. Sentencing is an important task in the
matters of crime. One of the prime
objectives of the criminal law is imposition
of appropriate, adequate, just and
proportionate sentence commensurate with
the nature and gravity of crime and the
manner in which the crime is done. There is
no straitjacket formula for sentencing an
accused on proof of crime. The courts have
evolved certain principles: the twin
objective of the sentencing policy is
deterrence and correction. What sentence
would meet the ends of justice depends on
the facts and circumstances of each case
and the court must keep in mind the gravity
of the crime, motive for the crime, nature of
the offence and all other attendant
circumstances."
13. From the aforementioned observations,
it is clear that the principle governing the
imposition of punishment will depend upon
the facts and circumstances of each case.
However, the sentence should be
appropriate, adequate, just, proportionate
and commensurate with the nature and
gravity of the crime and the manner in
which the crime is committed. The gravity
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of the crime, motive for the crime, nature of
the crime and all other attending
circumstances have to be borne in mind
while imposing the sentence. The Court
cannot afford to be casual while imposing
the sentence, inasmuch as both the crime
and the criminal are equally important in
the sentencing process. The Courts must
see that the public does not lose confidence
in the judicial system. Imposing inadequate
sentences will do more harm to the justice
system and may lead to a state where the
victim loses confidence in the judicial
system and resorts to private vengeance.
14. In the matter at hand, it is proved that
the victim has sustained a grievous injury
on a vital portion of the body, i.e. the head,
which was fractured. The doctor has opined
that the injury was life threatening. Hence,
in our considered opinion, the High Court
was too lenient in imposing the sentence of
six days only which was the period already
undergone by the accused in confinement."
9.2 In Bed Raj v. State of Uttar Pradesh
reported in 1955 (2) SCR 583, the Hon'ble
Supreme Court has concluded that the
question of sentence is a matter of
discretion and it is well settled that when
discretion has been properly exercised
along accepted judicial lines, an appellate
court should not interfere to the detriment
of the accused person except for very
strong reasons, which must be disclosed on
the face of judgment. It was further held
that in a matter of enhancement, there
should not be interference when the
sentence passed imposes substantial
punishment."
9. In the case of Parameshwari v. The State of Tamil
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Nadu & Ors., 2026 SCC OnLine SC 209 : 2026 (1)
GLR 600, it has been observed in Paragraphs 26 to 28
(GLR Paras 25 to 27) as under:-
"26. The view taken by this Court in
Saleem (supra) has been consistently
reiterated by this Court in a series of
judgments, including State of Punjab v.
Saurabh Bakshi, (2015) 5 SCC 182, State of
Punjab v. Dil Bahadur, (2023) 18 SCC 183
and several others.
27. This Court, while again discussing the
same issue in Suresh (supra) reiterated that
the Courts must keep in mind several
factors, while imposing or reducing the
sentence of any accused. The Court therein
also held that sentencing is awarding just
and adequate punishment to the
wrongdoer, and is the primary duty of the
courts. The relevant portion of the said
judgment is reproduced herein under:
"11. In State of M.P. v. Ghanshyam Singh
[State of M.P. v. Ghanshyam Singh, (2003)
8 SCC 13 : 2003 SCC (Cri) 1935], relating to
the offence punishable under Section 304
Part I IPC, this Court found sentencing for a
period of 2 years to be too inadequate and
even on a liberal approach, found the
custodial sentence of 6 years serving the
ends of justice. This Court underscored the
principle of proportionality in prescribing
liability according to the culpability; and
while also indicating the societal angle of
sentencing, cautioned that undue sympathy
leading to inadequate sentencing would do
more harm to the justice system and
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undermine public confidence in the efficacy
of law. This Court observed, inter alia, as
under : (SCC pp. 19-21, paras 12-15, 17 &
19)
"12. Therefore, undue sympathy to impose
inadequate sentence would do more harm
to the justice system to undermine the
public confidence in the efficacy of law and
society could not long endure under such
serious threats. It is, therefore, the duty of
every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed, etc. This position was
illuminatingly stated by this Court in Sevaka
Perumal v. State of T.N. [Sevaka Perumal v.
State of T.N., (1991) 3 SCC 471 : 1991 SCC
(Cri) 724]
13. Criminal law adheres in general to the
principle of proportionality in prescribing
liability according to the culpability of each
kind of criminal conduct. It ordinarily allows
some significant discretion to the Judge in
arriving at a sentence in each case,
presumably to permit sentences that reflect
more subtle considerations of culpability
that are raised by the special facts of each
case. Judges, in essence, affirm that
punishment ought always to fit the crime;
yet in practice sentences are determined
largely by other considerations. Sometimes
it is the correctional needs of the
perpetrator that are offered to justify a
sentence, sometimes the desirability of
keeping him out of circulation, and
sometimes even the tragic results of his
crime. Inevitably, these considerations
cause a departure from just deserts as the
basis of punishment and create cases of
apparent injustice that are serious and
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widespread.
14. Proportion between crime and
punishment is a goal respected in principle,
and in spite of errant notions, it remains a
strong influence in the determination of
sentences. The practice of punishing all
serious crimes with equal severity is now
unknown in civilised societies, but such a
radical departure from the principle of
proportionality has disappeared from the
law only in recent times. Even now for a
single grave infraction drastic sentences
are imposed. Anything less than a penalty
of greatest severity for any serious crime is
thought then to be a measure of toleration
that is unwarranted and unwise. But in fact,
quite apart from those considerations that
make punishment unjustifiable when it is
out of proportion to the crime, uniformly
disproportionate punishment has some very
undesirable practical consequences.
15. After giving due consideration to the
facts and circumstances of each case, for
deciding just and appropriate sentence to
be awarded for an offence, the aggravating
and mitigating factors and circumstances in
which a crime has been committed are to
be delicately balanced on the basis of really
relevant circumstances in a dispassionate
manner by the court. Such act of balancing
is indeed a difficult task. It has been very
aptly indicated in McGautha v. California
[McGautha v. California, 1971 SCC OnLine
US SC 89 : 28 L.Ed.2d 711 : 402 US 183
(1971)] that no formula of a foolproof
nature is possible that would provide a
reasonable criterion in determining a just
and appropriate punishment in the infinite
variety of circumstances that may affect
the gravity of the crime. In the absence of
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any foolproof formula which may provide
any basis for reasonable criteria to correctly
assess various circumstances germane to
the consideration of gravity of crime, the
discretionary judgment in the facts of each
case is the only way in which such
judgment may be equitably distinguished.
***
17. Imposition of sentence without
considering its effect on the social order in
many cases may be in reality a futile
exercise. The social impact of the crime e.g.
where it relates to offences against women,
dacoity, kidnapping, misappropriation of
public money, treason and other offences
involving moral turpitude or moral
delinquency which have great impact on
social order and public interest cannot be
lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing
meagre sentences or taking too
sympathetic a view merely on account of
lapse of time in respect of such offences
will be resultwise counterproductive in the
long run and against societal interest which
needs to be cared for and strengthened by
a string of deterrence inbuilt in the
sentencing system.
***
19. Similar view has also been expressed in
Ravji v. State of Rajasthan [Ravji v. State of
Rajasthan, (1996) 2 SCC 175 : 1996 SCC
(Cri) 225]. It has been held in the said case
that it is the nature and gravity of the crime
but not the criminal, which are germane for
consideration of appropriate punishment in
a criminal trial. The court will be failing in
its duty if appropriate punishment is not
awarded for a crime which has been
committed not only against the individual
victim but also against the society to which
the criminal and victim belong. The
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punishment to be awarded for a crime must
not be irrelevant but it should conform to
and be consistent with the atrocity and
brutality with which the crime has been
perpetrated, the enormity of the crime
warranting public abhorrence and it should
'respond to the society's cry for justice
against the criminal'."
(emphasis supplied)
XXXXXX
13. Therefore, awarding of just and
adequate punishment to the wrongdoer in
case of proven crime remains a part of duty
of the court. The punishment to be awarded
in a case has to be commensurate with the
gravity of crime as also with the relevant
facts and attending circumstances. Of
course, the task is of striking a delicate
balance between the mitigating and
aggravating circumstances. At the same
time, the avowed objects of law, of
protection of society and responding to the
society's call for justice, need to be kept in
mind while taking up the question of
sentencing in any given case. In the
ultimate analysis, the proportion between
the crime and punishment has to be
maintained while further balancing the
rights of the wrongdoer as also of the victim
of the crime and the society at large. No
straitjacket formula for sentencing is
available but the requirement of taking a
holistic view of the matter cannot be
forgotten.
14. In the process of sentencing, any one
factor, whether of extenuating
circumstance or aggravating, cannot, by
itself, be decisive of the matter. In the same
sequence, we may observe that mere
passage of time, by itself, cannot be a
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clinching factor though, in an appropriate
case, it may be of some bearing, along with
other relevant factors. Moreover, when
certain extenuating or mitigating
circumstances are suggested on behalf of
the convict, the other factors relating to the
nature of crime and its impact on the social
order and public interest cannot be lost
sight of."
28. At this juncture, it is also imperative for
us to mention that retribution is not the
ultimate aim of our criminal justice system,
rather it hinges on principles of reformation
and restitution. The criminal justice system
aims to achieve the twin objectives of
creating a deterrence against crime and
also providing an opportunity for
reformation to the offender. Due
consideration has also been provided by
our legal system to the rights of the victim,
who essentially are the first sufferers of the
crime."
10. The learned Trial Court Judge, after considering the
evidence on record, had found the charge against the
accused under the Arms Act qua accused nos.1, 2 and 3
as clearly established, in light of the recovery of country-
made pistol and had found that the offence under Section
135(1) of the Bombay Police Act as established against
accused nos.1, 2 and 3 in light of recovery and discovery
of weapons specified and established in terms of
Panchnama at Exh.23.
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11. Section 399 of IPC pertains to making preparation to
commit dacoity, where it has been provided that whoever
makes any preparation for committing dacoity, shall be
punished with rigorous imprisonment for a term which
may extend to ten years, and shall also be liable to fine.
12. Section 399 of IPC refers to "preparation" for the
commission of dacoity and the section makes
'preparation to commit dacoity' punishable. In order to
establish offence punishable under Section 399 of IPC,
some act amounting to preparation must be proved and
what must be proved further is that the act for which
preparation was being made was for dacoity, to be
committed by five or more persons. The necessary test is
the intention of the accused himself.
13. Learned advocate Mr. Barot has referred to the facts of
the case to submit that one person alleged to be named
as 'Munno' is an invisible, unidentified and ambiguous
accused. The prosecution, though has named him as
'Munno', but has failed to find out the identity of that
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person. The trial was against four accused, while the law
mandates under Section 399 of the IPC, five or more
persons for the offence to be considered as preparation
to commit dacoity.
14. To consider this relevant aspect in terms of the judgment
and analysis of the evidence of the learned Trial Court
Judge, it requires to be noted that Police Inspector - Shri
Tarunkumar Barot attached to Crime Branch, Ahmedabad
on 02.06.2003, received a secret information from his
informer to the effect that five persons (i) Arvindsingh @
Rinku, (ii) Shyamvirsingh, (iii) Gitesh Pratapsinh, (iv)
Dipendrasinh Tejsinh, and (v) Munno together were to
come for the commission of offence between 06:00 p.m.
and 08:00 p.m. at a restaurant known as Natraj Hotel
located near Naroda Patiya and further the information
was that the accused were armed with certain weapons
and were planning to carry out dacoity on Shahid Veer
Petrol Pump located on Dahegam Road.
15. The provision with regard to the secret information and
protection of the source has been incorporated under
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Section 125 of the Indian Evidence Act, 1872. Section 125
is reproduced hereunder for ready reference:-
"125. Information as to commission of
offences.- No Magistrate or police-officer
shall be compelled to say whence he got
any information as to the commission of
any offence, and no revenue officer shall be
compelled to say whence he got any
information as to the commission of any
offence against the public revenue."
16. Section 125 of the Evidence Act gives protection to the
police officer, and he shall not be compelled to say his
source of information as to the commission of offence.
The provision is based on public policy.
17. Here, in the present case, the evidence of Police
Inspector - Tarunkumar Barot as leader of the raiding
team examined as PW2 refers to the information received
from the informant, while the trap laid as per the
testimony shows that the informant was along with the
raiding party all throughout. The informant, during the
time of the raid, was stated to have identified three
accused alighted from the rickshaw and two accused who
were coming on foot. Those who had alighted from the
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rickshaw were Arvindsing @ Rinku, Shyam Prasad
Virsingh and Gitesh. While the persons who were
identified as had come walking, were Deepsingh and
another was named as 'Munno'. The Investigating Officer
has stated in his testimony that all the accused were
identified by the informant, the accused were cordoned
and attempt was made to apprehend them, while out of
them, one person had run away. According to the
Investigating Officer, the person who ran away mingled in
the public and therefore, could not be found and when
four of them were brought near Natraj Hotel and in the
brightness of the light, when they were interrogated and
personal search was made, the Investigating Officer
found from the accused - Arvindsing one Tamancha
(country made pistol) ducked in the belt on the left hand
side of his trouser and five cartridges were recovered
from his right pant pocket. On personal search of
Shyamvirsinh, a knife was recovered from the belt of the
pant, while from Gitesh, country-made revolver ducked
on the left side of belt of his trouser was recovered along
with five cartridges from the right pocket of his trouser.
From accused no.4, nothing incriminating was found
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during his personal search.
18. The Investigating Officer - Shri Barot as the leader of the
trapping team deposed that thereafter, when he had
inquired from those four persons about the person who
escaped from the place, except naming him as 'Munno',
they were not aware about his address.
19. The prosecution to be made successful under Section 399
of IPC has to prove the involvement of five or more
persons. In the case of Mahabir Singh (supra) referred
by Advocate Mr. Barot, the prosecution was under
Sections 399 and 402 of IPC, where similar facts were
recorded, that four persons were arrested and one person
succeeded to run away under the cover of darkness. The
High Court of Punjab and Haryana at Chandigarh had
observed in Paragraphs 21 and 22 as under:-
"21. During the short hearings on some
previous dates of hearing, this Court gave
enough opportunities to the State of
Haryana to clarify the whereabouts of fifth
accused, who is named as Mangal @
Manga. Despite of grant of 5/7
opportunities, no plausible explanation was
put-forth, rather, one status report dated
01.03.2023 is presented in the shape of
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affidavit of Ram Kumar, HPS, Assistant
Commissioner of Police, Kalka, on behalf of
the respondent-State. The said status
report says as under:-
"1. That the above said case came up for
hearing on dated 06.02.2023 before this
Hon'ble Court and the Hon'ble Court was
pleased to direct "To find out the status of
5th accused - Mangal @ Manga...." and
adjourned the case for 01.03.2023.
2. That challan in the present case
bearing FIR No.164 dated 06.09.2003 under
sections 399/420 of IPC at Police Station
Kala was presented against four accused
persons. Since 5th 2023:PHHC:042951 CRA-
S-1825-SB-2004 CRA-S-433-SB-2005-19 -
accused namely Mangal @ Manga fled away
from the spot.
3. That as per police rules, the files of
old cases are destroyed after a period of
every four years. Subsequently, the file of
the present case was destroyed. A copy of
Reply from VRK branch O/O Deputy
Commissioner of Police, Panchkula annexed
as an Annexure - R1.
4. That regarding 5th accused namely
Mangal @ Manga, as per information
received from the office, neither said
accused has been arrested till date nor
proceedings qua proclaimed offender has
ever been initiated against him. In the view
of above mentioned facts the present
petition filed by the petitioners may kindly
be disposed in the interest of justice."
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Considering the aspect that the case was
registered way back on 06.08.2003, after
conducting raid, but till date prosecution is
unable to explain or even failed to bring
any material about the fact that any such
person ever existed or if existed, what
steps were taken by the prosecution to
make their story more reliable i.e.
gathering/assembly of five persons at the
time of committing raid. Thus, in the
absence of same, this Court cannot accept
the version of the prosecution that name of
the fifth accused is the correct one or not?"
20. Here, in this case too, it has been reported that the
person named as 'Munno' was never identified and no
further supplementary charge-sheet was filed or any
proceeding was initiated thereafter for a separate
sessions trial. The evidence of PW1 - Basruddin Jivabhai
who was the Panch of the Panchnama of the incident
stated that as per his information, four persons were
arrested by the police from the rickshaw. PW3 -
Ishvarbhai Chimanlal Kahar who was also as a Panch in
the raiding Panchnama stated that apart from them,
there were two accused present one was Arvindsinh and
another was Jitendra and he further clarified that there
were no other person present there. He stated that both
the accused were in an age group of 25 to 26. The police
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witnesses have contrary story to say.
21. PW4 - Mukeshkumar Natvarlal Vyas who was the member
of the raiding team working in Crime Police Office, in the
cross-examination, affirmed that two persons had
alighted from the rickshaw who met other three persons
all had gathered and has also affirmed that they had not
made any attempts to catch the two of them. The
evidence of PW4 suggests that apart form Police
Inspector - Shri Barot and PW4, there were Police Sub-
Inspector - Shri Chauhan of SK Ward, Police Sub-Inspector
- Shri B.S. Goswami, ASI - Anilkumar and Head Police
Constable - Niazamuddin and other staff members.
Inspite of all of them, none had attempted to arrest
accused named as 'Munno'. PW4 does not even recollect
as to who had gone behind accused 'Munno'. He also
does not recollect the member of raiding party going
behind 'Munno' and does not even remember of the
distance covered by any of the member of the raiding
party to chase 'Munno'. PW4 further clarifies that he does
not remember the name and address of 'Munno', nor he
remembers his age.
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22. Section 125 of the Indian Evidence Act, 1872 prohibits
disclosure of source of any income as to the commission
of offence. The evidence of PW2 - Tarunkumar Barot
suggests that the accused were identified by the
informant when three of them had alighted from the
rickshaw and two of them were on foot. The informant
told him there that two persons who had come walking,
was one Deepsingh and another was Munno. This
evidence of the leader of the raiding party itself suggests
that PW2 as police was not claiming for any privilege as
provided under Section 125 of the Evidence Act and
clarifies that the informant was with PW2. The leader of
the raiding party is not disclosing the name of the
informant. Section 125 of the Evidence Act gives
immunity to the Police Officer from disclosing the source
of information upon which he takes action. Under Section
125 of the Evidence Act, only the source of information is
privileged to be kept secret, but as observed in the case
of D. Namperumal & Ors. v. State by Public
Prosecutor S.P.O., 1985 SCC OnLine Mad 412,
Section 125 of the Evidence Act does not prohibit the
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police officer from disclosing the source if he is so willing
and the details can be elicited. In the referred case of D.
Namperumal (supra), it has been observed as under:-
"11. Considering the section and the above
decisions the nature and extent of the
privilege under S. 125 of the Evidence Act is
the effect that no Magistrate or Police
Officer can be compelled to say from
whence information was got as to the
commission of the offence. Now there is
nothing to prohibit him from disclosing if he
is so willing. So the discretion as to whether
he may or not had been left with the
Magistrate or the Police Officer. Under the
English Law, protection does not depend
upon a claim being made, and the duty is
cast upon Judges apart from objections
being taken to exclude such evidence if it is
detrimental to public interest as held in
Honssay v. Bright ([L.R.] 29 Q.B.D. 494) But
so far as we are concerned under S. 125 of
the Indian Evidence Act a police officer
cannot be compelled to say from where he
got information in relation to the
commission of any offence whether it is an
offence in respect of which the prosecution
is instituted or with reference to the
commission of the offence in any other
case. Hence the conclusion arrived at by
the learned Sessions Judge is correct and
the same will have to be confirmed.
12. But at the same time only the source
of information is privileged and the detail
can be elicited. In this case nobody know
whether the source report in respect of
which the question is asked contains any
information which cannot be divulged under
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S. 125 of the Evidence Act. Under the
circumstances the prosecution will have to
produce the source report in a sealed cover
and the Sessions Judge can peruse the
same to find out whether that report
contains any information which cannot be
divulged under S. 125 of the Evidence Act,
and with reference to information not hit by
S. 125 the Sessions Judge may permit the
counsel for the petitioner to put question to
D.W. 2 regarding the details of criminal
cases against UP.W. 7. With these
observation this criminal miscellaneous
Petition is dismissed."
23. Here in the present case, PW2 - Tarunkumar Barot stated
that he had received the information on 02.06.2003 from
his informant describing that on that day in the evening,
between 06:00 to 08:00, five persons (i) Arvindsingh @
Rinku, (ii) Shyamvirsingh, (iii) Gitesh Pratapsinh, (iv)
Dipendrasinh Tejsinh, and (v) Munno, in total five were to
assemble near Naroda Patia and were coming to Natraj
Hotel, they were having arms with them and were
planning to commit dacoity at some petrol pump. PW2
stated that as per the information, he informed Police
Sub-Inspector - Goswami and Chauhan, Head Police
Constable - Nizammuddin, Head Police Constable -
Mukesh Natvarlal Vyas, Mahendrasinh, Vihabhai and
Mansukhlal, PRO and they all went in the Government
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vehicle at 16:45 hrs. from Naroda through Kalupur, and
all the staff members at a distance stood at Natraj Hotel
in watch, and they had kept their vehicles at a distance
and thereafter, two pedestrians were stopped and were
informed about the information, for them to remain as a
Panch. According to him, one was Faruk Abdulraheman
Pathan and the second was Basruddin Jivabhai Sandhi
and then started to draw Panchnama at 17:30 hrs. PW2
further stated that thereafter, all the staff members as
well as the informant and others scattered around Natraj
Hotel and took their position.
24. The admitted position which becomes clear is that the
informant was also a member of the raiding party. The
leader of the raid - PW2, thus, was making it clear from
his own action that he was not preferring to conceal the
source of his information. The Investigating Officer
appears to be not claiming any privilege under Section
125 of the Evidence Act since he had kept the informant
along with him all throughout the raid. The evidence
further records that through the informant present, he
had got the identification of all the five accused at the
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spot. The deposition of PW2 - Shri Barot does not disclose
that the information so received by him was reduced in
writing as a 'Janvajog Entry' at the Police Station while
the Panchas do not affirm that the informant had
identified the accused there.
25. The police officer - PW2, as leader of raiding team, was
required to produce on record a General Diary as an
officer in-charge of the Police Station to prove the record
of the information, which he received from the informant.
Section 44 of the Police Act, 1861 provides for "such
General Diary" to be maintained by the officer in-charge
of the police station. In the case of Directorate of
Enforcement v. Dipak Mahajan, (1994) 3 SCC 440, it
has been observed as under:-
"112. The expression 'diary' referred to in
Section 167(1) of the Code is the special
diary mentioned in Section 167(2) which
should contain full and unabridged
statements of persons examined by the
police so as to give the Magistrates on a
perusal of the said diary, a satisfactory and
complete source of information which would
enable him to decide whether or not the
accused person should be detained in
custody but it is different from the general
diary maintained under Section 44 of the
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Police Act."
26. Section 44 of the Police Act, 1861 is reproduced
hereinunder for ready reference:-
"44. Police-officers to keep diary.--It shall
be the duty of every officer in charge of a
police- station to keep a general diary in
such form shall, from time to time, be
prescribed by the State Government and to
record therein all complaints and charges
preferred, the names of all persons
arrested, the names of the complainants,
the offences charged against them, the
weapons or property that shall have been
taken from their possession or otherwise,
and the names of the witnesses who shall
have been examined.
The Magistrate of the district shall be at
liberty to call for and inspect such diary."
27. In the case of Sukhlal Banshi Lodhi & Anr. v. State of
M.P., 1998 (1) MPLJ 288, the Madhya Pradesh High
Court was dealing with the issue with regard to copy of
the General Diary, which was the best evidence available
not produced during the trial. It had been noted that the
copy of the General Diary relating to the fact that the
police had started from the police station in pursuance of
the information received ought to have been produced to
show that the police party started, as claimed. It was
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further noted that it was the duty of the prosecution to
have filed these documents to show that there was
substance in the prosecution case that the information as
claimed and the party had gone to the place of
occurrence. The observation was also with regard to
taking independent witnesses from the village. The Court
observed that there is nothing in the statement of any
witness that any attempt whatsoever was made to take
any independent witness from the village. The Court also
has made reference to the provision of compliance of
Section 50 of the Cr.P.C., whereupon it is the duty cast on
every police officer or the other persons arresting any
person without warrant to communicate to the person
arrested full particulars of the offence alleged for which
he was arrested or other grounds to such arrest.
28. Here too, in the present matter, it was claimed that the
accused persons were arrested on the spot and weapons
were recovered from them. It would be the burden of the
prosecution to dispel the doubt, to prove the case beyond
all reasonable doubt.
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29. In the present case, it does not appear that the leader of
the raiding party and his team member or the informant
had given their search to the person arrested before the
search of those person in presence of Panchas. Section
51 of the Cr.P.C. provides about the search to be made of
the arrested person. Further, it is not the case of the
leader of the raiding party - PW2 - Shri Barot that on
seizure of the Tamancha and a knife from the accused,
any seizure receipt was issued showing the articles taken
in possession by the police. Section 51 of the Cr.P.C.
provides that where any articles is seized from the
arrested person, receipt showing the articles taken in
possession by the police officer shall be given to such
person. PW2 - Shri Barot does not refer in his evidence of
the compliance of Section 52 of the Cr.P.C., which gives
the officer power to seize offensive weapons, where after
the seizure, the officer has to deliver all the weapons so
taken to the Court or officer before which or whom the
officer or person making arrest is required by Cr.P.C. to
produce the person arrested. The Tamancha, which he
found from accused Arvindsing, was loaded and on
unloading the weapon, he found one cartridge. The
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Tamancha with accused Jitesh similarly unloading, found
one cartridge. PW2 stated that on inquiring from
Arvindsingh and Gitesh about the pass permit, they
denied of any pass permit and therefore, the Muddamal
was seized at the place. This very act of recovering and
seizing the Muddamal could have been proved by the
production of the office copy of the seizure receipt as
contemplated under Section 51 of the Cr.P.C.
30. PW2 stated that the Tamancha and the cartridges were
put under the seal of Inspector of DCB Crime. PW2 further
stated that there was inscription in English of the letter
'M.M. Cash'. The knife was noted of 21 centimeters. The
value of one Tamancha was calculated as Rs.15,000/-
and in total noted as Rs.30,000/-, while the value of one
cartridge was recorded as Rs.100/- and the total value for
the cartridges was noted as Rs.10,000/- and knife was
valued at Rs.20/-. PW2 inquired from the accused, who
informed that all the four along with 'Munno' had made a
plan to commit dacoity at the petrol pump, which was
near Bhugamali Dahegam and they had made
preparation for that. It appears that the accused had not
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informed the police the name of the petrol pump. So as
per the information from the accused to the police, which
is not admissible in evidence as statement before police,
the plan and preparation was already made, so they had
not gathered there for making any preparation for
dacoity at that place.
31. In the cross-examination from the side of accused nos.1,
2 and 3, PW2 affirmed that the members of the raiding
party all had weapons with them. In such circumstances,
not giving their own search before the arrested person
would make the process of seizure and arrest suspicious.
There is no evidence of record of issuing any seizure
receipt, nor the officer states that he had forwarded the
weapons seized from the accused to the Court or had
handed over to the officer, before whom, he was required
to produce the person arrested. There is no evidence of
leader of this raiding party of producing the accused
along with the weapons before the nearest Judicial
Magistrate, immediately on apprehending them.
32. It is the case of the prosecution that the detailed
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Panchnama was drawn with regard to the incident in
presence of two independent Panchas and thereafter,
Police Inspector - Shri Barot lodged a complaint against
the accused. A report as also the complaint were
forwarded to the PSO, Crime Branch who acting thereon
registered an offence at DCB CR no. I-7/2003 and after
taking custody of the Muddamal seized, the PSO of the
DCB handed over the further investigation to Police Sub-
Inspector - Ibrahim Chauhan (PW8) who was also the
member of raiding party, an officer who was following the
instruction of PW2, during the trap.
33. PSO - Madhusingh Bharatsingh Charan was examined as
PW9 who stated that the incident had occurred on
02.06.2003 and on that day, Police Inspector - Tarun
Barot had given a complaint against Arvindsingh @ Rinku
and four others regarding dacoity. As per the rules, he
registered the offence and handed over investigation to
Police Sub-Inspector - I.K. Chauhan (PW8) and stated that
in connection with the offence, he had to maintain the
Muddamal receipt and also a register with regard to
arrest and other process. In connection with this offence,
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he registered an FIR and had recorded the entry in the
Station Diary. The entry was also made with regard to the
arrest. The Muddamal receipt was issued for two
Tamanchas, one knife and 15 live cartridges, which he
received in a sealed condition. This witness has not
produced a copy of the Muddamal receipt in the
evidence.
34. The PSO in the cross-examination was confronted with his
report under Section 157 Cr.P.C. with the suggestion that
the time was belatedly recorded in the report after the
raid. He denied the suggestion that he had not drawn any
Muddamal receipt and also denied that he had not made
any entry regarding the arrest of the accused in the
register. The witness has not produced any of such
document in his evidence. In the cross-examination from
the side of the accused no.4, PW9 PSO stated that he had
not handed over the Muddamal to Shri Chauhan, while
handing over the investigation. He also affirmed that
when the Muddamal had been sent to him, he had not
verified whether it was in a sealed condition and had also
not verified by opening the seal. The witness voluntarily
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stated that the Muddamal was in a plastic box and that it
was easily visible, which fact is not corroborated by the
other police witness.
35. In the cross-examination from the side of accused nos.1
to 3, PW2 as leader of raiding team, has stated that he
had not sent his superior officer the information received,
nor had he noted the details of the information in any of
the record.
36. PW2 also stated that he had not made any arrangement
for procuring Panchas after moving out of Police Station
till the time had arranged themselves for the watch.
37. The leader of the raiding team had the duty to have
recorded the information received, the details of the
information in the record, sent to his superior officer was
necessary to prove the authenticity of having received
the information. The police had the immunity under
Section 125 of the Indian Evidence Act, 1872 to not
disclose the source of information, but cannot take the
plea of immunity of not informing the superior office of
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the details of information received. To prove the fairness,
the leader of raiding team was required to even record
the information received in Police Station diary as 'Janva
Jog' the Gujarati phrase translates as 'worth knowing',
'for information'. The information is not recorded
anywhere, inspite the fact that the informant is traveling
along with this officer throughout. The informant had
been in the raid. He accompanied PW2. As per the PW2,
the informant had identified the accused.
38. The very crucial aspect, which becomes vital in
background of the fact that informant was accompanying
the leader of the raiding team, PW2 as the leader has not
verified the information. PW2 had not made any
endeavour for verification of the information. PW2 had
not tried to find out whether the informant had any
enmity with the accused, and whether he was
deliberately trying to falsely implicate the accused.
39. The Investigating Officer - PW8 testimony proves that
apart from the Investigating Officer and PW2 the leader
of raiding party, there were further ten members in the
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team. The Investigating Officer had named them in his
deposition. The investigation also becomes questionable
since the Investigating Officer (PW8) was also the
member of the raiding party with PW2 - Shri Barot as
leader of the team. Since Investigating Officer was the
member of the raiding party, he was the eye witness to
the trap. Thus, in all due fairness and to prove the
independency of the investigation, the PW8 ought not to
have investigated the case.
40. The Investigating Officer as PW8 deposed that on
02.06.2003, when he was at his Crime Branch,
Ahmedabad City Office on his duty, at about 16.15
Tarunkumar K. Barot, Police Inspector, Crime Branch,
Ahmedabad City had informed him about the information
received from his personal trustworthy informant and had
also informed PW8 that the information is definite and
essential, that on that day between six thirty and eight in
the evening, five persons within the age group of 20 to
30 years with weapons were going at a petrol pump near
Hotel Natraj, Naroda Patiya to commit dacoity.
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41. The information transmitted to PW8 was not of accused
to assemble to make preparation for dacoity, the
information was they were actually to go at a petrol
pump to commit dacoity. There was no information of the
name of the petrol pump, nor the place where the petrol
pump was situated.
42. Then in view of this information received, the raiding
team was required to arrange themselves at the petrol
pump. It is not the information that five or more persons
were preparing for dacoity at a particular place and they
were to raid that place. The definite information
conveyed to the PW8 was that the dacoits were going for
dacoity at a petrol pump between 6 to 8 p.m. in the
evening. The Investigating Officer, though had received
the information, had failed to transcribe the same in the
station diary as 'Janva Jog'.
43. There is variance in the information to PW2 and PW8.
PW2 had not informed PW8 that the alleged persons were
going to come to Natraj Hotel. Investigating Officer (PW8)
had stated in his cross-examination that at that time,
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there were about six Police Inspectors serving and one
officer in the level of Deputy Superintendent of Police.
PW8 also affirmed that prior to taking up the
investigation, he had not requested in writing or orally to
his superior officer that since he was member of the
raiding party, he could not take up the investigation nor
had he talked about it to Shri Barot. In the background,
inference could be drawn that to support the other officer
of his level, the investigation was handed over to him. It
appears that the Deputy Superintendent of Police was not
informed about the raid.
44. The time of receiving such information is also not proved.
PW8 has admitted in the cross-examination that he was
continuously with Shri Barot from the time Shri Barot
conveyed the information and till they started for raid
between 16.15 to 16.45 at the Police Station. At that
time, the information was not recorded in station diary,
nor he had recorded the details of information on some
paper, and had also confirmed that none of the members
of the raiding party had recorded the information in his
presence. So the fact becomes clear that the information
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received was never recorded by any of the police
persons. Another glaring thing is that inspite of there
being 12 members in the raiding team, none of them had
noted or recorded or memorized the registration number
of autorickshaw in which three of the accused had come
at Natraj Hotel, inspite of all of them standing near Natraj
Hotel on watch, when all the members saw the three
accused alighting down from the autorickshaw.
45. As per the testimony of PW2, Shri Barot as leader of
raiding team he had inquired at Natraj Hotel from the
accused, who all stated that along with the escaped
person 'Munno', they had made plans and made
preparation to commit dacoity at the petrol pump near
Bhagamali Dehgam, so it was not the case that the
accused had come to Hotel Natraj for discussing their
plans or making preparation for dacoity at Natraj Hotel.
46. The information received as recorded in the Panchnama
Exh.23 reflects that five persons aged about 20 to 30
years, i.e. accused nos.1 to 4 and one 'Munno' with the
illegal weapons in their hands, for making preparation for
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the commission of dacoity at petrol pump were about to
assemble at Natraj Hotel near Naroda Patiya three cross
road between 6 to 8 in the evening. So the information
recorded in Panchnama was that they were to assemble
at Natraj Hotel to make preparation for dacoity.
47. Three disembark from a autorickshaw at Natraj Hotel,
none of the members of raid nor the team leader had
seen the accused paying fare to the auto driver. Police
had not inquired whether auto driver was involved. None
of the team members had checked any other rickshaws.
After the three alighted from rickshaw, within two to
three minutes, the remaining two came there walking.
PW2 - Shri Barot denied of any office of travel Company
located in the line of Natraj Hotel, while Investigating
Officer PW8 affirmed that there were many offices of
travels surrounding Natraj Hotel. PW2 did not deem fit to
call any person from travel offices to witness the incident.
PW8 affirmed that Natraj Hotel was very famous and
there would be lot of customers.
48. The Investigating Officer affirmed that the accused by
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profession were diamond cutters which he came to know
during the inquiry from the accused. PW8 denied to say
that the labourer of diamond cutting factory at
Krishnanagar, and Bapunagar would come in the evening
to drink tea at Natraj Hotel.
49. PW6 - Nizamuddin Gulammiya Saiyed testified to state
that he and Mansukhbhai had run after 'Munno' to catch
him and that they had ran for above 100 to 150 meter,
while the Investigating Officer (PW8) affirmed that
Nizamuddin (PW6) in his statement had not got it
recorded that Nizammuddin or Mansukhbhai had ran
behind accused. Thus, the fact of police following the
escaped accused named 'Munno' also get falsified by the
testimony of Investigating Officer (PW8). The
Investigating Officer further stated that both the Panchas
were taxi drivers. As per Shri Barot, Panchas were called
from the road, who were pedestrians.
50. The Investigating Officer (PW8) evidence recorded that
he had asked for the remand of accused from the Court
which was granted till 07.06.2003. He inquried from the
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accused about their name, weapon, catridges and knife.
Inspite of the remand, the Investigating Officer could not
find out the details of 'Munno', is a fact impossible to
believe. The whereabouts and the origin of 'Munno' could
have been ivestigated, but appears that no efforts had
been made. Law requires for the commission of offence
for preparation to commit dacoity, five or more persons.
In order to establish offence under Section 399 IPC, some
act amounting to preparation must be proved, and what
must be proved further is that the act for which
preparation was being made was for dacoity that is to say
to be committed by five or more persons.
51. In Ghotlu Modi and Etc. v. State of Bihar, 1986 Cri.L.J.
1031, Mohd. Hussein v. State of Bihar, 1987 Cr.L.J. 1391,
it was observed that the mere fact that the accused
persons were in a lonely place at night in a house under
construction and incriminating articles like firearms,
bombs and a Bhujali were recovered from their
possession, is not sufficient to prove the charge that they
assembled for making preparation for commission of
dacoity.
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52. In Mohan Singh & Ors. v. State of Punjab in CRA 790
SB 2009, decided on 30.11.2022 by Punjab and Haryana
High Court at Chandigarh, it was observed as under:-
"First of all, this Court has to examine as to
whether the accused were allegedly making
preparations to commit dacoity and had
assembled for the purpose of committing
dacoity, while they were sitting at a place
duly armed with firearms and various other
weapons. Sections 399 and 402 of the
Indian Penal Code clearly provides that
making preparations for the commission of
dacoity and assembling for the purpose of
dacoity are punishable offences.
Consequently, the prosecution is bound to
prove, from some evidence directly or
indirectly or from the attending
circumstances that the accused persons
had assembled for no other purpose but to
make preparations and assembling for the
commission of dacoity. If the evidence led
by the prosecution falls short of it, the case
is bound to fail. Though word "preparation"
has not been defined in the Indian Penal
Code, the prosecution is obligated to lead
some evidence to show such a conduct
which is sufficient 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 some object, for which
they had assembled. Therefore, mere fact
that some were found sitting at a lonely
place at mid night and certain firearms and
weapons were recovered from their
possession would not be sufficient to prove
the charge that they had assembled for
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making 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 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."
53. Here in the present matter, the information to the
Investigating Officer was of five accused about to go to
petrol pump to commit dacoity armed with weapons. The
information given to the Investigating Officer as member
of raiding time was not of five accused assembling at
Natraj Hotel for making preparation to commit dacoity,
who had assembled for that purpose.
54. From the evidence of PW2, Shri Barot when he inquired
from three-four accused, they told him that they planned
and made preparation for dacoity at petrol pump, near
Bhugamali - Dehgam. The statement of accused before
the police is inadmissible in evidence. However, from this
statement before the leader of raiding team, it becomes
clear that five had assembled there not for making any
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preparation for dacoity. Natraj Hotel is a busy place, near
the three cross lane. It is unfathomable that the accused
would come for preparation to commit dacoity at the
place having high frequency of people visiting there.
Natraj hotel is not a secluded place, it was surrounded by
many offices of travel Company.
55. PW2 - Shri Barot stated that he along with the informant
were standing at the corner of Natraj Hotel when three
accused alighted from the rickshaw after the informant
identifying them, PW2 had not signalled to the rest of the
member of the team. PW2 has no knowledge from which
direction the other two were coming walking. According
to PW2, when both the persons met the other three and
started their talks, they immediately cordened, to
apprehend them, what was the conversation between
five of them was not overheard by PW2. PW2 does not
even know which of his team member had run after
alleged 'Munno'. He himself had made no efforts to catch
the escaped person. So here when the talks of the
accused was not overheard, there is no material on
record to suggest that at that time, accused were making
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any plans for dacoity.
56. PW2 stated that on the personal search of the accused,
he found no currency notes, or other papers or discovery
from their person. This fact becomes improbable to
believe since they had come in a rickshaw and when
rickshaw driver was not involved, then certainly, they
would have paid rickshaw fare. They would have further
plans to go to their alleged destiny which was at about 28
kms. distance, and from there further would have made
plans to escape by some vehicles or other means.
57. To the question to PW2 whether he had made any efforts
to verify the authenticity of the information, PW2 replied
that informant was along with him. In the circumstances
of the matter, when the leader of the raiding party had
not made any efforts to shield the source of information,
then the Investigating Officer was required to record the
statement of informant who probably could have given
the statement of the earlier plans and preparation made
by the accused for which he had secret information.
Unfortunately, in view of Section 125 of the Evidence Act,
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statement of the informant could not be recorded. So the
case of preparation for the commission of dacoity could
not be proved.
58. PW4 - Mukesh Kumar Vyas was also the member of
raiding team. PW4, in the cross-examination, affirmed
that they used to consider the cases of weapons and
Narcotics as quality cases and in such cases, the
Government would give encouragement prices. Such
details are sent to the Government in 'price form'. They
would keep details of their work in personal diary. PW8 -
Shri Chauhan had not asked for his personal diary during
his statement. According to PW4, they would get those
diary deposited before the Crime Writer Head. No diary of
any of the member has been produced to corroborate
their own version. So no diary is coming forth on record
to corroborate the fact of that day incident.
59. PW4 also stated that he had not recorded the registration
number of the rickshaw in his personal diary, nor had
made any efforts to catch the rickshaw. PW4 also stated
that there were not checking the vehicles on the road,
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clarifying that no occasion arose to do such checking.
After the two persons came there and five had gathered,
they had not made any efforts to approach the two. He
does not remember who had gone after Munno to catch
him.
60. PW4 also affirmed that at that time, the lights were on in
the travel office and the hotels. According to PW4, Shri
Barot was with the informant and two Panchas.
61. PW4 said that 'Munno' rushed away towards Dehgam.
According to the memory of PW4, both the persons were
standing near Natraj Hotel.
62. So in context of evidence of PW4, the unknown person
'Munno' was already present at the place, even before
the rickshaw with accused nos.1 to 3 could come at the
Natraj Hotel. The evidence of PW4 further clarifies that at
the time when the rickshaw had come, the lights of the
offices of the travel and the hotels were on.
63. No person from the travel office or from the hotels were
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called as Panchas. PW4 testified that it was a place of
high frequency of people, and at the time of incident,
about 100 persons from the public had gathered there.
The informant who was with Shri Barot, PW2 had not
identified the accused Dipendrasing and 'Munno' earlier
as according to PW4, they were present there even
before the arrival of rickshaw.
64. The case was of 'preparation' for the dacoity. Police
witnesses could not testify as to what preparation and
plan were made by the accused at Natraj Hotel. They
have not overheard the talks between the accused.
Before anything could happen, the police cordoned them
and held them as apprehended.
65. The Investigating Officer - PW8 was confronted with the
charge-sheet filed. Four persons were shown as accused
in column no.1 and four others were shown in column
no.2 of the charge-sheet. The Investigating Officer was
posed with a question that four persons were
apprehended at the spot and four had ran away from the
place, to which, the Investigating Officer denied. The
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Investigating Officer, while giving clarification said that
only one person out of five had run away, while the rest
of the persons are those whose names got disclosed
during investigation. The charge-sheet in column no.2
records only first name of the four persons, which
includes at Sr. no.1 'Munno', and the three others have
been referred, but with only first name and not other
detail of their father's name, surname and their
residence.
66. The Investigating Officer stated that names of others
were disclosed during the time of the search of 'Munno'
from the co-accused, and he had not recorded the
statements of any independent person. The Investigating
Officer also stated that he had made attempt to arrest
the other three accused referred in column no.2 of the
charge-sheet. The Investigating Officer does not recollect
the time of arrest of the present accused. According to
his evidence, Shri Barot had arrested them at 21.30
hours, till the time, investigation was handed over to him,
he was continuously with Shri Barot.
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67. The police who had ran after 'Munno' was PW6 -
Nizammudin Gulammiya Saiyed. In his examination-in-
chief, PW6 stated that he and Police Constable-
Mansukhbhai had ran after the accused who fled from the
place, but according to the witness, he escaped within
the crowd. So they come back near Barot Saheb, while
the Investigating Officer has denied of any statement
given by PW6 - Nizammudin of PW6 and Mansukhbhai
running after the accused.
68. The existence of fifth person as 'Munno' becomes
doubtful and the evidence on record and the
investigation followed after the raid makes fifth accused
more inconspicuous. The police, as interested party to
the raid, who all them would be interested to get their
raid declared as legal and valid, and prove successful at
the most was required to prove the fifth person as one of
the accused.
69. Section 391 of the IPC defines 'dacoity', which punishes
the act of dacoity committed by five or more persons
conjointly.
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70. Section 391 of IPC would be relevant to understand the
provision of Section 399 IPC, wherein in the present
matter, four accused came to be convicted. Section 391
IPC reads thus:-
"391. Dacoity.--When five or more persons
conjointly commit or attempt to commit a
robbery, or where the whole number of
persons conjointly committing or
attempting to commit a robbery, and
persons present and aiding such
commission or attempt, amount to five or
more, every person so committing,
attempting or aiding, is said to commit
"dacoity".
71. Section 399 of IPC, thus, would be invoked only when it is
proved that five or more persons conjointly were making
preparation for committing dacoity. The prosecution has
no escape, but to prove the active involvement of five or
more persons in the preparation for committing dacoity.
72. Generally, in trap cases in the form of raid, the Panchas
are supposed to depose all the things they saw and
observed and recorded in the Panchnama. They are
selected to be an independent person to the proceeding.
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The raiding party leader is the person directing the raid.
It was his duty to find independent and reliable person to
be made Panch. Shri Barot callously without any
verification of background randomly called two persons
from the road, while as per the Investigating Officer, PW8
Panchas were taxi drivers.
73. The Investigating Officer - PW8 was the member of the
raiding party. The Investigating Officer is also an
interested party as he would also want to prove the
success of their attempt, then the prosecution was
required to prove that five or more persons assembled
for the preparation of commission of dacoity. Section 402
IPC provides for assembling for the purpose of
committing dacoity. Assembly of five or more persons is
a must, to be established, then the another stage is that
of preparation by five or more to commit dacoity, which is
punishable under Section 399 of IPC. The word
'conjointly' employed in the definition of dacoity as
provided under Section 391 of IPC bears importance on
the liability of persons accused of an offence of dacoity.
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74. Panch PW1 stated that the police has caught four persons
from a rickshaw. Panch PW3 stated that only two accused
were present one was Arvindsing and another was
Jitendra, when Panchnama was drawn and the police had
taken them to 'Vir Sahid Petroleum' 'Dinesh Petroleum'.
Surrounding the petroleum were open fields. Panch
deposed that he had not dictated the Panchnama. PW3
as Panch was not declared hostile. Why panch was taken
to 'Vir Sahid Petroleum' 'Dinesh Petroleum' does not
become clear.
75. The prosecution has examined PW7 - Rajeshkumar
Manilal as one employee of 'Kargil Sahid Petroleum',
situated on Dehgam road. Panch witness no.3 was asked
by the defence lawyer whether the accused had shown
any thing at that place, which Panch does not recollect,
and stated that the place where they had gone was a
huge petrol pump. PW7 - Rajesh Manilal is not the owner
of the petrol pump, his deposition shows that he was
unemployed at the time of his testimony during the trial.
PW7 said that on 03.06.2003, Gayekwad Haveli police
had come along with the person. The police told him that
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these four persons were going to commit dacoity at that
petrol pump, which was 'Kargil Sahid Petroleum', and had
brought the four for identification. The witness had
identified one out of the four at that time and had also
identified one during trial. The Court verified the name as
Arvindsing (accused no.1).
76. The witness - PW7 could state that he could identify the
one, as he (accused no.1) had come on 02.06.2003 at the
petrol pump and had asked for drinking water from
another of their employee, and then he was shown the
place to fetch water, the accused then drank water and
left the place. The witness PW7 stated that there was one
more person along with him, but he could not identify.
77. There is nothing on record to prove that PW7 was serving
on petrol pump on that day. Further, the evidence of PW7
only proves one person. In the cross-examination, PW7
gives evidence that he had not got it recorded in his
statement that police had brought four persons at the
petrol pump.
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78. PW5 - Narendra Bechardas Kahar is the Panch who had
been called by the Gayakwad Haveli Police Station, who
was informed at the police station that four accused were
to show the petrol pump place and they were to go to see
it, so from the Police Station they came on Naroda-
Dehgam road. As per the panch evidence, two accused
showed the petrol pump place. The witness affirms that
PW3 - Ishvarbhai was the another panch. PW5 as panch
has named the petrol pump as "Sahid Vir Petroleum'.
PW3 addressed the petrol pump as 'Vir Sahid Petroleum',
which PW7 referred it as 'Kargil Sahid Petroleum'. The
evidence of PW3 shows that it was accused nos.1 and 3,
Arvindsing and Jitendar @ Jitu, while PW5 could only
identify accused no.1 - Arvindsing. PW7 had named the
petrol pump, where accused no.1 allegedly visited for
drinking water, as 'Kargil Sahid Petroleum'. What
connection the prosecution wanted to bring, whether
accused planned to commit dacoity at 'Kargil Sahid
Petroleum' does not get proved, nor anything had come
on record by way of the evidence of PW3 and PW5 that
'Vir Sahid Petroleum' and 'Kargil Sahid Petroleum' are
one and the same. Even if it would be considered as one
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and the same place, merely seeing the petrol pump place
or accused showing the petrol pump after the raid at
Natraj Hotel will bear no relevance to create value.
79. The informant had not given any physical description of
the accused, the information received, as was not
recorded prior to starting for the raid, only on the oral
testimony of the police without corroboration with any
legal document to be maintained by law cannot be
believed. The leader of the raiding team Shri Barot PW2
was mandatorily required to note the information as the
'Janva Jog entry' in the station diary and after sending the
information to the superior officer should have proceeded
for raid.
80. Strangely, what was the trap for, what was the
Investigating Officer heading for, whether to see the
actual dacoity on the petrol pump, or to see the
preparation for dacoity at Natraj Hotel does not get clear
from the testimony of police witnesses, more specifically
from the leader of the raiding team.
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81. The informant was along with the leader of the raiding
team, and Shri Barot deposed that the informant had
identified them at Natraj Hotel. It is not the case of any
Test Identification Parade held in presence of Executive
Magistrate. The informant, being the member of the
raiding team and stated to be the eye-witness to the
incident identifying the accused was required to be
examined as prosecution witness. The defence could
have brought on record any ulterior motive of the
informant or other consideration to support the officer to
earn the name for prize money.
82. All the examined witnesses are almost interested and the
witness from the petrol pump could not give any specific
evidence, he was also not trustworthy witness as he
could depose only about his other employee from whom
accused no.1 had asked for drinking water. That witness
could only refer to accused no.1. Panchas have not
deposed of what they actually saw, during the raid and
the panchas for the petrol pump are the one taken at the
petrol pump, the day after the raid.
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83. When FIR could not be registered prior to the raid, the
least the leader of the trapping could have done was to
write the information in the Police Station diary or the
diary maintained under Section 44 of the police, no
details were maintained of the constitution of the team
and the names of the members of the team in the Police
Station record. The superior officer was not informed
about the information, nor was informed of the formation
of team to lay the trap. Worst part of the present matter
was that the investigation was conducted by the officer
who was subordinate to the leader of raiding team. The
Investigating Officer was following the instruction of the
raiding team head. It becomes questionable, about the
control, the head of the raiding team hold, to even not
inform his superior officer about his action. No standard
procedure had been proved to be followed by the police
in cases of such raid. Law does not give unlimited power
to the police to apprehend any person without following
the process of law. The police is required to prove that
his action was fair, independent and without bias, and
was in accordance with law.
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84. In Kailash Dheemar (supra), the case was of, in-charge
of Police Station who along with police forces had
reached the spot and heard the conversation of the
accused persons who were making a plan to commit a
dacoity. After hearing the conversation, police personnel
surrounded and apprehended six of the accused and
from them three of the accused succeeded in running
away from the spot. In that regard, ingredients of
Sections 399 and 402 of IPC were considered placing
reliance on the judgment of Annu @ Ansingh v. State
of M.P., 1996 Cr.L.J. (MP) 110, wherein it has been
held as under:-
"For offence u/s.402 of IPC the conditions
required to be proved by the prosecution
are:-
(i) Assembly of 5 or more persons.
(ii) It should be for the purpose of
dacoity.
In this case, there was an assembly of more
than 5 persons. Further circumstances that
they were armed with such implements,
which could be used for house breaking or
causing obstruction or climbing over the
house as the rope was there, were also
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present. At least there was one fire-arm i.e.
country made pistol. So by these
circumstances, it can be suspected that
these appellants had gathered with some
nefarious object, as to why such a large
number of persons should gather with such
deadly weapons. But then the question is
whether they were assembled for the
purpose of committing dacoity, such an
inference may be taken, if there is any
background to show that they were
confirmed dacoity. There is no evidence on
record that they were either convicted for
dacoity. So the circumstances are
insufficient to infer that the assembly was
for the purpose of dacoity."
85. In Santosh Kumar and Etc. (supra), the case which was
on record before the Trial Court was about the
conversation between the accused persons regarding
preparation to commit dacoity and grant for sanction for
prosecuting the appellants under the Arms Act. Having
considered the rival contentions, it had been observed in
Paragraph 5 as under:-
"5. Having considered the rival
contentions, I have also gone through the
record of Sessions Case no.231/2004.
Naither Inspector Ramesh Pandey P.W.7 nor
Constable Dhanush Kumar Pandey P.W.4
who had apprehended the appellants near
the canal have deposed that they heard
any such conversation of the appellants
which was indicative of their preparation for
committing any dacoity. It is undisputed
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that though the appellants were alleged to
be armed with deadly weapons, yet neither
any weapon was used nor any resistance
offered by them. Independent public
witnesses i.e. Pramod Kumar Patel P.W.1
and Bijuram Yadav P.W.2 did not support
the prosecution story and stated that the
police did not effect any seizure in their
presence near the canal and they knew
nothing about the incident. Constable
Dhanush Kumar Pandey P.W.4 has in
Paragraph 8 stated that he could not tell as
to what weapons were seized from the
appellants. His statement in Paragraph 8
completely contradicts his statement in
Paragraph 2 that the appellants were
making preparations for committing dacoity
and country made pistol, Gandasa like knife
and sword were seized. It is also pertinent
to note that this witness did not state that
any jute bomb was seized from any of the
appellants. Coming to the testimony of
Inspector Ramesh Pandey PW7 he also did
not state that he heard the appellants
making preparations for the purpose of
committing dacoity. No conversation of the
appellants was heard by this witness. His
testimony does not show that the country
made pistols, cartridges and jute bombs
were sealed immediately after effecting
seizure from the appellants. Even the
seizure memo Exs. P.1, P.2, P.4 and P.5
does not show that the above mentioned
country made pistols, cartridges, sword like
knife and jute bombs were sealed."
85.1 In the same decision of Santosh Kumar and Etc.
(supra), the observation is about the verification of the
secret information by the independent witness and the
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spot reported of the accused person conversing in
making preparation to commit dacoity, it was recorded as
under:-
"6. ..... Raznamcharana Ex.P.14 dated 17-
4-2004 written by Inspector Ramesh
Pandey PW7 clearly shows that Constable
Dhanush Kumar Pandey PW4 and
independent witnesses Pramod Kumar Patel
PW1 and Bijuram Yadav PW2 were sent to
the spot in complete darkness as advanced
party to verify the secret information
received by him and they had after
verifying from the spot reported that 6-7
persons were conversing and making
preparations to commit dacoity. However,
no such evidence has been adduced by the
prosecution. The testimony of Dhanush
Kumar Pandey PW4 is wholly unreliable in
view of his statement in Paragraph 8."
86. In Subhash Hariram Rajbhar & Ors. (supra), the case
was about accused making voluntary statement before
the police that was recorded in presence of two panchas.
The accused was ready to show the place where they
about to commit dacoity. Such statement or confession
before the police was found inadmissible under Sections
25 and 26 of the Evidence Act and further the statement
also did not pass the rigors of Section 27 of the Evidence
Act since it did not lead to any discovery, nor it was
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distinctly related to any facts. The necessary observation
is recorded hereinbelow:-
"11. ...... If the accused states before the
police that he and other accused had
planned and prepared to commit dacoity at
a particular place, that amounts to
confession of the offence punishable under
Section 399 and 402 of the I.P.C. Under
Section 25 of the Evidence Act "No
confession made to a police officer, shall be
proved as against a person accused of any
offence." Under Section 26 of the Evidence
Act "No confession made by any person
whilst he is in the custody of a police
officer, unless it be made in the immediate
presence of a Magistrate, shall be proved
as against such persons." It is not the case
of the prosecution that when the accused
no.1 Subhash made the confession
recorded in the memorandum Exhibit 20
and panchanama Exhibit 21, any Magistrate
was present. Therefore, confession made
by the accused no.1 Subhash is hit by the
provisions of Section 25 and 26 of the
Evidence Act and it would be inadmissible
in evidence. Section 27 of the Evidence Act
is however, an exception or a proviso to
Sections 25 and 26 of the Evidence Act.
While a confession made before the police
or while in police custody is inadmissible
under Sections 25 and 26 of the Evidence
Act, when any fact is deposed to as
discovered in consequence of information
received from a person accused of any
offence, in the custody of a police officer, so
much of such information whether it
amounts to a confession or not, as relates
distinctly to the fact thereby discovered,
may be proved. Therefore, only that part of
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the information, which may be in the nature
of confession, is admissible which relates
distinctly to the discovery of fact which is
admissible under the law. If on the basis of
information given by the accused no.1
police would have discovered some fact
relevant for this case, that statement would
be admissible in evidence under Section 27
of the Evidence Act. However, no recovery
of any material was made nor any fact was
discovered as a result of the alleged
confession or information given by the
accused no.1. Alleged statement made by
the accused no.1 before the police and
panchas is a confession of the offence
simplicitor without leading to any discovery.
Therefore, in my considered opinion, the
said statement or confession was hit by
Sections 25 and 26 and is inadmissible
under the law. It could not be admitted in
evidence under Section 27 because it did
not lead to any discovery nor it was
distinctly related to discovery of any fact."
87. In the case of Lal Bahadur Choudhary and Anr.
(supra), the Court had dealt with the provision of Sections
399 and 402 of IPC and has noted in Paragraph 23 as
under:-
"23. It is pertinent to note that Section 399
of the Indian Penal Code deals with making
preparation to commit dacoity and Section
402 of the Indian Penal Code deals with
assembling for purpose of committing
dacoity. The offence under Section 402 of
the Indian Penal Code is complete as soon
as five or more persons assemble together
for the purpose of committing a dacoity.
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Preparation to commit dacoity may take
place before or after the dacoits assemble
together. Preparation consists in devising or
arranging the means necessary for the
commission of an offence. Though, offence
falling under Section 399 and 402 of the
Indian Penal Code involve almost similar
ingredients, the difference is that under
Section 402 of the Indian Penal Code mere
assembly without any preparation is
enough to attract the offence, whereas
Section 399 of the Indian Penal Code is
attracted only if some additional steps are
taken in the course of preparation."
87.1 In the same judgment of Lal Bahadur Choudhary and
Anr. (supra), the Court found it difficult to believe the
assembly of the accused at a conspicuous place with the
intention of committing a dacoity and had also noted that
though the articles may have been seized from the
possession of the accused persons, it cannot be said that
the said weapons would be utilized only for the purpose
of committing dacoity and not for the other offence. The
relevant observations are made in Paragraph 24 as
under:-
"24. As per the prosecution evidence, the
place of occurrence was quite close to the
place where dance program Patna High
Court CR. APP (SJ) No.183 of 2006 dt.27-08-
2025 was going on. It is difficult to believe
that appellant no. 1 with other accused
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persons would have assembled at such a
conspicuous place with the intention of
committing a dacoity and would take such a
grave risk. The statement of accused
persons before the police, who were caught
hold by the police party that they were
going to commit a dacoity being clearly
inadmissible has to be excluded from
consideration. The possibility that accused
persons may have collected for the purpose
of committing some other offence cannot
be safely eliminated. It cannot be said that
the articles seized from possession of the
co-accused persons can be utilized only for
the purpose of committing dacoity and for
no other offence. The prosecution must
have proved from the 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."
87.2 In the same judgment of Lal Bahadur Choudhary and
Anr. (supra), the reference was made about non-
production of the seizure-list and invocation of Section
106 of the Evidence Act. The observations read in
Paragraph 25 as under:-
"25. Though, merely because independent
witnesses were not examined, the evidence
of the official witnesses cannot be
discarded. Even if the prosecution has
successfully established that the appellant
along with four other persons assembled in
a lonely place i.e. sugarcane field in the odd
hours of night i.e. around 1.30 A.M. on
09.11.1987 from possession of co-accused
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persons arms were seized, in my humble
view, that by itself cannot be sufficient to
hold that the appellant no. 1, from whom no
arms were recovered, had assembled there
for the purpose of committing dacoity or
was making preparation to accomplish that
object. It cannot be said that the articles
seized from the possession of the co-
accused persons can be utilized only for the
purpose of committing dacoity and for no
other offence. As stated above, neither
seizure-list was prepared nor seized
material objects were produced in the Trial
Court by the prosecution and seizure-list
witnesses were also withheld by the
prosecution. The aid of Section 106 of the
Evidence Act can be taken in criminal trial
only when the prosecution has led evidence
which, if believed, will sustain conviction or
which makes out a prima facie case. Unless
this is done, no burden of proving anything
would lie on the accused. If there is any
fallacy in explaining his position on the part
of the appellant no. 1, that would not
absolve the prosecution from its primary
obligation to make out a prima facie case
under Sections 399, 402 and 307/34 of the
Indian Penal Code against the appellant
no.1."
88. In the case of Jasbir Singh @ Javri @ Jabbar Singh,
(supra), the reference was about the secret information
about dacoity received by police personnel, and the
Hon'ble Supreme Court also dealt with Sections 399 and
402 of the IPC and Section 25 of the Arms Act, 1959. The
Hon'ble Supreme Court has, after considering the facts of
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the case, put the ultimate findings in following terms:-
"12. Strangely, even after observing as
above, the High Court has believed the
prosecution story in respect of offences
punishable under Sections 399 and 402 IPC,
and one in respect of offence punishable
under Section 25 of Arms Act. The High
Court has erred in law in not taking note of
the following facts apparent from the
evidence on record: -
(i) In a day light incident at 1.20 p.m.
within the limits of City Police Station,
Karnal, there is no public or any other
independent witness of the arrest of the
appellant along with other accused from
the place of incident nor that of the alleged
recovery of fire arm said to have been
made from two of them. (It is not a case
where arrest or recovery has been made in
the presence of any Gazetted Officer.)
(ii) Complainant (PW-6) has himself
investigated the crime, as such, the
credibility of the investigation is also
doubtful in the present case, particularly,
for the reason that except the police
constables, who are subordinate to him,
there is no other witness to the incident.
(iii) It is not natural that the six accused,
four of whom were armed with deadly
weapons, neither offered any resistance nor
caused any injury to any of the police
personnel before they are apprehended by
the police.
(iv) It is strange that all the accused were
wearing blue shirts, as if there was a
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uniform provided to them.
(v) It is hard to believe that the appellant
and three others did not try to run away as
at the time of the noon they must have
easily noticed from a considerable distance
that some policemen are coming towards
them. (It is not the case of the prosecution
that police personnel were not in uniform.)
13. In view of the above facts and
circumstances, which are apparent from the
evidence on record, we find that both the
courts below have erred in law in holding
that the prosecution has successfully
proved charge of offences punishable under
Sections 399 and 402 IPC, and one
punishable under Section 25 of Arms Act
against appellant Jasbir Singh @ Javri @
Jabbar Singh, beyond reasonable doubt. In
our opinion, it is a fit case where the
appellant is entitled to the benefit of the
reasonable doubt, and deserves to be
acquitted."
89. In the case of Chaturi Yadav (supra), the Hon'ble
Supreme Court of India was finding it difficult to believe
that the appellants would assemble at such a
conspicuous place with intention of committing a dacoity
and would take such a grave risk. Finding no legal
evidence to support the charge under Sections 399 and
402 of the IPC by allowing the appeal acquitted the
accused. The Hon'ble Supreme Court has made the
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necessary reference in Paragraph 4:-
"4. The Courts below have drawn the
inference that the appellants were guilty
under both the offences merely from the
fact that they had assembled at a lonely
place at 1 A.M. and could give no
explanation for their presence at that odd
hour of the night. Mr. Misra appearing for
the appellant submitted that taking the
prosecution case at its face value, there is
no evidence to show that the appellants
had assembled for the purpose of
committing a dacoity or they had made any
preparation for committing the same. We
are of the opinion that the contention raised
by the learned counsel for the appellants is
well founded and must prevail. 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 1 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. The High Court itself has, in its
judgment, observed that the school was
quite close to the market, hence it is
difficult to believe that the appellants would
assemble at such a conspicuous place with
the intention of committing a dacoity and
would take such a grave risk. It is true that
some of the appellants who were caught
hold of, by the Head Constable are alleged
to have made the statement before him
that they were going to commit a dacoity
but this statement being clearly
inadmissible has to be excluded from
consideration. In this view of the matter,
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there is no legal evidence to support the
charge under Sections 399 and 402 against
the appellants. The possibility that the
appellants may have collected for the
purpose of murdering somebody or
committing some other offence cannot be
safely eliminated. In these circumstances,
therefore, we are unable to sustain the
judgment of the High Court."
90. For the conviction under Section 25(1B)(a) of the Arms
Act, the reliance has been placed on the document
Exh.27, which was given by the Scientific Officer A.P. Jani
of the FSL Department of the Gujarat State dated
18.12.2003. The Muddamal was received by the FSL on
26.06.2003. It is required to be noted that no ballistic
report of the seized Tamancha is on record. The sanction,
which is necessary for prosecuting the accused under the
Arms Act was given by Joint Police Commissioner, Crime
Branch, Ahmedabad City which is dated 25.08.2003. As
referred hereinabove, even if the arms were proved to be
in the possession of the accused, it cannot be
countenance of the fact that the weapon was with the
accused for the purpose only and only for dacoity. The
intention of the accused would have been different by
holding the weapons they may have planned for
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commission of some other offence.
91. The prosecution has failed to prove their case beyond all
reasonable doubt. The learned Sessions Judge had raised
the following points for determination to answer the
points in affirmative:-
"(1) Does the prosecution prove beyond
reasonable doubt that the accused or any
one or more of them have entered into a
conspiracy and had started preparation for
looting the petrol pump known as Shahid
Veer Petrol Pump and had thereby
committed an offence punishable under
Section 399 IPC?
(2) Does the prosecution prove beyond
reasonable doubt that the accused Nos.1 to
3 being armed with deadly weapons like
revolver without any licence or permit in
that regard have committed an offence
punishable under Section 25(1B)(a) of the
Arms Act?
(3) Does the prosecution prove beyond
reasonable doubt that the accused or any
one or more of them have committed an
offence punishable under Section 135(1) BP
Act?
(4) Does the prosecution prove beyond
reasonable doubt that the accused or any
one or more of them have committed any
offence under any law for the time being in
force?
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(5) What order and what judgment?"
92. On examination and analysis of the evidence of the
witnesses, it appears that the learned Sessions Judge has
erred in considering that the prosecution has, beyond
reasonable doubt, proved issue no.1 in affirmative. The
learned Sessions Judge had committed error in
formulating the point no.1, when the case was under
Section 399 of the IPC and when the mandate of law is to
prove the offence by accused as five or more. The
learned Sessions Judge had, in contradiction to the
provision of Section 391 of the IPC, had analysed the
case with reference to the accused as anyone or more of
them having entered into conspiracy and had analysed
the facts raising the point for determination, considering
the conspiracy of one or more and preparation of one or
more for looting the petrol pump, known as Vir Sahid
Petrol Pump for commission of the offence under Section
399 of IPC. The learned Trial Court Judge failed to
appreciate the requirement for the preparation of
commission of dacoity by five or more persons conjointly,
and the learned Trial Court Judge has failed to formulate
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the issue accordingly making it necessary for the
prosecution to prove the preparation for commission of
dacoity by five or more persons.
93. In the overall appreciation of the facts with the evidence
in the form of testimony of the police witnesses and the
Panchas, the case of the prosecution cannot be believed
since the information received had not been recorded in
the police station diary as 'Janva Jog' entry, nor such
information was recorded in the personal diary of any of
the police witnesses. The privilege under Section 125 of
the Evidence Act cannot be claimed by the leader of the
raiding party PW2, as the leader, had not shielded the
informant from any other police officers as a team
member, nor before the Panchas. The identity of the
informant was exposed by the leader of the raiding party
to all the members of the raiding team as well as the
Panchas. The information alleged to have been provided
by the informant had not been verified to know whether
the informant was harbouring any enmity against the
accused, who as proved by the Investigating Officer, were
all in the profession as diamond cutters. The information
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given, stated that the accused already had made plans
and preparations for dacoity, thus, there was no
necessity for any raid to be launched at Natraj Hotel and
it would be impossible to believe that the accused
persons would gather in a place, where the hotel had
high frequency of customers and the surrounding place
had offices of travel agents, and it was a public road. The
seizure list was not issued to the accused. On personal
search, no money or any other document were found
from the accused, which also adds, to find it difficult to
believe the story of the prosecution. The Panchas have
not corroborated the prosecution police witnesses. In
case of raid, the Panchas of the raid have to depose the
whole fact and the sequence of the incident, which they
had observed; while in the present case, none of the
Panchas could corroborate the police witnesses. Further,
the Panchas have not proved the presence of five
accused at the place of incident. They could give
evidence for only two accused. The story of the
prosecution of 'Munno' being present along with the four
apprehended accused and 'Munno' escaping the place,
by mingling in the public also becomes hard to believe
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when there were many police persons present there in
the team. The Investigating Officer could not prove the
fact that the named police officers had followed 'Munno'
to apprehend him. Though the accused were found with
the weapons as country-made pistol and knife, the fact
requires corroboration by the evidence of the police
witnesses and the Panchas that the police and the
Panchas had given their search prior to apprehending the
accused when the fact has come on record that all the
police witnesses were holding the weapons with them.
The prosecution case also becomes doubtful since none
of the accused had resisted the police or caused any
injury to any of the police personnel. The police has
miserably failed to prove the presence of five or more
persons to have made preparation for the commission of
dacoity. The Investigating Officer's charge-sheet also
creates a gloomy picture, where four other persons
including 'Munno' were shown in column no.2 of the
charge-sheet. The police could not verify the identity of
'Munno' as well as other three who were shown in column
no.2 of the charge-sheet. Further, the Investigating
Officer's attitude also becomes partisan towards the
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informant since as the leader of the raiding team had not
conveyed the message of the information received to the
superior officer, nor had communicated the superior
officer about the constitution of their team before going
on raid. Mere recovery of the weapons from the accused
would not be suffice to prove that they had gathered to
make plan and preparation for dacoity. The accused
would have gathered for any other purpose apart from
dacoity, when the law mandates that the assemblage of
five or more persons conjointly were making preparations
for the commission of dacoity. The prosecution has no
other option, but to prove the identity of atleast five
persons. Here, the trial was only against four. The
escaped person 'Munno' could not be identified by the
police. His whereabouts could not be known. Hence, in
absence of proving presence of five, no case under
Section 399 of the IPC could be believed.
94. In view of the analysis of the evidence and the reasons
given hereinabove with the reference of the case laws, it
can be definitely concluded that the prosecution had
failed to prove the case beyond all reasonable doubt. The
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accused are required to be acquitted since the case
under Section 399 of IPC has not been proved against
them. As the case is of acquittal of the accused, there
would not be any ground to appreciate for the
enhancement of the sentence, prayed by the State.
95. In view of the above discussion, Criminal Appeal no.412
of 2005 and Criminal Appeal no.715 of 2005 filed by the
appellants - original accused are allowed. Criminal
Appeal no. 1139 of 2005 filed by the State is dismissed.
The judgment and order of conviction and sentence
dated 28.02.2005 passed by the learned Additional
Sessions Judge, Ahmedabad City in Sessions Case no.51
of 2004 is set aside. The appellants - original accused are
acquitted of all the charges leveled against them. Bail
bond stands discharged. Registry is directed to send the
record and proceedings back to the concerned Trial Court
forthwith.
(GITA GOPI,J)
Maulik
