Rajendra @ Raja & 03 Ors. vs State Of M.P.
2022 Latest Caselaw 6068 MP

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                                         Criminal Appeal No.1243/2009



        IN THE HIGH COURT OF MADHYA PRADESH
                       AT INDORE

                        BEFORE
         HON'BLE SHRI JUSTICE ANIL VERMA

           CRIMINAL APPEAL No.1243 of 2009

  Between:-
1 RAJENDRA @ RAJA S/O DEVKARAN,
  AGED - 25 YEARS,
  R/O - VILLAGE DHAMAT, P.S. SIDDHIGANJ,
  TEHSIL ASHTA, DISTRICT SEHORE (M.P.)

2 RAJKUMAR S/O. VIKRAMSINGH PARMAR,
  AGED - 22 YEARS,
  R/O - VILLAGE SEMLIBARI, P.S. JAORA,
  DISTRICT SEHORE (M.P.)

3 SANJAY CHOUHAN S/O. CHHOGALAL CHOUHAN,
  AGED - 22 YEARS,
  R/O. - VILLAGE BILADLI, P.S. HATPIPALIYA,
  DISTRICT DEWAS (M.P.)

4 RAMSINGH S/O. GANGARAM SENDHAV,
  AGED - 27 YEARS,
  R/O - VILLAGE HIJIRIYA, P.S. JAWAR,
  DISTRICT SEHORE (M.P.)
                                               .....APPELLANTS

  AND

  THE STATE OF MADHYA PRADESH,
  THROUGH POLICE STATION MAHAKAL,
  DISTT. UJJAIN (M.P.)
                                               .....RESPONDENT
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                                                Criminal Appeal No.1243/2009



______________________________________________________
     Shri K. K. Gupta, learned counsel for the appellants.
     Ms. Harshlata Soni, learned Panel Lawyer for the
     respondent / State.
______________________________________________________
Whether approved for reporting : No
      This Criminal Appeal coming on this day, the court passed
the following:
                       J U D G E M E N T

(Delivered on this 25th day of April, 2022) The present criminal appeal is arising out of judgment dated 12/10/2009 passed by 5th Additional Session Judge, Ujjain in Session Trial No.11/2009, whereby the appellants have been convicted for offences punishable under Section 399 and 402 of the Indian Penal Code, 1860 (in short "IPC") and have been sentenced to undergo rigorous imprisonment if 5-5 years with fine of Rs.5,000/- on each count with default stipulation. Appellant No.1 Rajendra @ Raja has also been convicted under Section 25(1-B) A of the Arms and has been sentenced to undergo rigorous imprisonment of 03 years with fine of Rs.1,000/- with default stipulation. Remaining three appellants namely Rajkumar, Sanjay and Ramsingh have also been convicted under Section 25(1)(1-B) (B) of the Arms and have been sentenced to undergo rigorous imprisonment of 1-1 year with fine of Rs.1,000/- each with default stipulation.

Criminal Appeal No.1243/2009

As per the prosecution story, on 04/11/2008 police got a discrete information from the informant that appellants Rajkumar, Sanjay @ Sanju, Ramsingh and Rajendra along with other companions are planning for committing dacoity on Highway. Acting upon the said information, four police parties reached on the spot. Police heard the conversation regarding planning of dacoity on National Highway. All the appellants / accused persons were arrested by the police. Police recovered a country made pistol (Katta) of 315 bore with cartridges from the possession of the appellant Rajendra. Police has also recovered knives from the possession of other three appellants. One unknown miscreant has been fled away from the spot. Hence, FIR has been registered against the accused persons / appellants.

After completion of investigation, charge sheet was filed in the matter under Section 399 and 402 of the IPC and Section 25 of the Arms Act. After framing of charges, appellants denied all the allegations levelled against them. Prosecution in order to bring home the guilt, examined as well as eight witnesses. Appellants / accused persons did not examine any witness in their defence. After conclusion of the trial, learned trial Court, on appreciation of evidence available on record, delivered the impugned judgment accordingly and convicted and sentenced the appellants as stated herein above.

The appellants have preferred this appeal on several grounds

Criminal Appeal No.1243/2009

stating that the learned trial Court has failed to appreciate the facts and circumstances of reasonably and properly. The judgment of the trial Court is contrary to the law and facts on record. Same is neither legal nor proper. Prosecution case is not supported by independent witnesses and there are so many contradictions and omissions in the statement of the prosecution witnesses. The trial Court has not considered the material contradictions and omissions and is also wrong in drawing unwarranted inference. The appellants are facing the trial since 2009. They have no criminal background and therefore, the appeal be allowed and conviction and sentence awarded to the appellants be set aside.

Per contra, learned Panel Lawyer for the respondent / State supported the impugned judgment passed by the trial Court and prays for dismissal of the present appeal by stating that the trial Court after appreciating the evidence available on record in detail come to the conclusion. The learned trial Court did not committed any mistake in holding that the appellants are guilty for all the offences, therefore, present appeal deserves to be dismissed.

Learned counsel for both the parties are heard at length and perused the record of the trial Court with due care.

According to the statement of Inspector Daulat Singh (PW-

8), he was posted as in-charge of Police Station Mahakal, Ujjain on 03/11/2008. He got information from the informer that accused Rajendra @ Raja along with other accused persons Rajkumar,

Criminal Appeal No.1243/2009

Sanjay @ Sanju and Ramsingh along with other companions are less with country made pistol (Katta) and knives and they are making preparation to commit dacoity on the Highway. As a result of which, he entered the said information in Rojnamcha Sanha No.302 and prepared four police parties. He along with police party proceed to catch hold the miscreants nearby the Mullapura to Chintaman. When he reached the spot, he heard that accused persons were conversing that they would commit dacoity on Highway. According to this witness, police party caught hold the accused persons. They have disclosed their names as Rajendra, Rajkumar, Sanju and Ramsingh. On the spot, he has recovered a country made pistol (Katta) of 315 bore and a Bajaj Discover Motorcycle from the possession of the accused Rajendra through seizure memo (Ex.-P/7). He also recovered knives from the possession of the Rajkumar, Sanjay and Ramsingh through seizure memo (Ex.-P/8, P/9 and P/10).

Similar is the statement of Indra Vikram Singh (PW.1), PSI Rajesh Patel (PW.4), ASI Ramdas Yadav (PW.7).

Independent witness Manish (PW.5) was examined by the prosecution, but he has turned hostile and has not supported the case of the prosecution. He has categorically stated in his statement that he had signed document Exhibits P/3 to P/10, but he did not know the accused persons and the aforementioned offence. All the accused persons neither arrested before him nor recovered anything

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from the possession of accused persons.

It is first to be point out that there was no independent witness in support of the prosecution and explanation is that there being no village near the spot where the incident took place, no independent public witnesses could be available. I do not mean to say that as a matter of Rule, the prosecution version cannot be accepted unless supported by independent public witnesses. In the present case, Manish (PW.5) turned hostile and other independent witnesses were not examined therefore, in view of the other circumstances, taken together with the non-support of independent witnesses, create reasonable doubt as to the happening as alleged by the prosecution.

It is also noteworthy that all the appellants were allegedly found in possession of the pistol and knifes, but as per the prosecution, there was no exchange of any resistance from the appellants. It is obviously, the matter of arrest or escape of the accused. There could be hardly be any point in their keeping arms and ammunition if they did not intend to use the same, even when challenged. The conduct assigned to the appellants does not attract of logic therefore, this fact becomes doubtful that appellants were carrying any deadly weapon for the purpose of commission of crime or dacoity or any other crime.

There is nothing to show that except alleged bald talking, the miscreants have taken any further step for the purpose of

Criminal Appeal No.1243/2009

committing dacoity. Even there is no such version that the miscreants have started going for that purpose. It would be pertinent to mention that in the case of Shridhar Koeri vs. State of Bihar, 2001 (43) SCC 5, the Apex Court has held that the mere fact that the accused was arrested on the spot and some articles including fire arms were recovered from his possession would not be sufficient to prove the charge that they had assembled for making preparation of commission of dacoity.

It is established law that the guilt of the accused must be proved beyond all reasonable doubts. Burden of proving its case beyond reasonable doubt lies upon prosecution and it never shifts. Another golden thread, which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced and the other to his innocence, the view which is favourable to the accused should be adopted.

There are so many material contradictions and omissions in the statements of Inspector Daulat Singh (PW.8) and other witnesses. Daulat Singh (PW.8) stated in his cross examination that he has made spot map Exhibit P/12 on the spot, but Hari Singh Thakur (PW.6) has stated that no such document has been written on the spot. Daulat Singh (PW.8) has stated that he saw the miscreants from the distance of 50 Fts., but Indra Vikram Singh (PW.1) has stated that he cannot say that what the distance between accused persons and police. Rajesh Patel has also stated that he saw

Criminal Appeal No.1243/2009

the accused persons from distance of 10 - 20 Metres. As per Ramdas (PW.7), the distance was between 10 - 15 Fts. Ramdas (PW.7) also stated that at the time of incident there was completely dark whereas Indra Vikram Singh (PW.1) has stated that there was moon light. Per contra, Daulat Singh (PW.8) has stated that they have reached on the spot near about 11.45 PM, but Ramdas has stated that they reached on the spot about 11.00 AM to 12.30 AM. There are so many other contradictions in the statements of these witnesses of seizure of the arms, preparation of seizure memo and identification of the accused persons therefore, in view of the aforesaid material contradictions and omissions statements all these witnesses appears to be doubtful.

Admittedly, police arrested the accused persons at night time and incident has taken place at night, but there is no evidence available on record to show that there was any source of light available on the spot. It is very strange to gather as to how the police officials identified the accused persons in the dark night. It is also noteworthy that the seized arms were not produced before the trial Court during the examination of seizure witnesses. Seizure arms were not properly sealed and it is also doubtful when did all these arms kept in the Maalkhana of the concerned police station, therefore, seizure of these arms become so doubtful.

In the instance case, considering the entire evidence, it reveals that prosecution version lacks genuineness and authenticity.

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The prosecution version appears unnatural as it is quite improbable that the said police could have heard any such conversation of appellants that they were saying that they would commit dacoity. Even otherwise, mere alleged conversation hardly fulfills the necessary ingredients of offence under Sections 399 and 402 of IPC.

The High Court of Orissa, Cuttack in the case of Jaganath Mundari vs. State of Odisha, JCRLA No.75/2016 in para No.9 has held as under :-

"9. 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. There is manifestly a distinction between the offences under section 399 and section 402 of the Indian Penal Code. 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. Preparation for committing a 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 the offence falling under section 402 of the Indian Penal Code and the offence falling under section 399 of the Indian Penal Code would probably involve almost similar ingredients, the only 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

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the course of preparation. In an identical factual scenario, in the case of Chaturi Yadav and others Vrs. State of Bihar reported in MANU/SC/0093/1979 : A.I.R. 1979 Supreme Court 1412, wherein the accused persons were found assembled at a lonely place in the school premises, who were detected by the police patrol party and on seeing the police party, some of the accused persons ran away but some of the accused persons were caught and from their possession, guns and live cartridges were found and they were found guilty by the learned trial Court under sections 399/402 of the Indian Penal Code and their conviction were confirmed in appeal by the Patna High Court but their Special Leave to Appeal was allowed by the Hon'ble Supreme Court and the judgment of the conviction was set aside and the appellants were acquitted of all the charges. The relevant portion of the decision is quoted herein below:

This Court is of the considered opinion that the contention raised by the learned for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place and could give no explanation for their presence at that odd hour of the night. Learned counsel appearing for the appellants 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.

Considering the aforesaid case laws, facts and evidence available

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on record, there is no hesitation to hold that the prosecution has failed to prove the charges against the appellants beyond reasonable doubts, therefore, the present appeal is allowed and the conviction and sentence under Sections 399 and 402 of IPC and under section 25(1-B)A and 25 (1-B)B is set aside. The appellants/accused are acquitted from all these charges.

This Court by order dated 13.12.2021 has directed to file report regarding custodial period of appellant No.1. As per report appellant No.1 - Rajendra @ Raja is on bail since 24.02.2012. His bail bond and surety bond are hereby discharged. So far other appellants No.2 to 4 are concerned, the trial Court is directed that if the appellants No.2 to 4 have served their jail sentence then they be released forthwith, if not required in any other case. In case, appellants No.2 to 4 are on bail then their bail bond and surety bond be discharged. Fine amount if deposited be also returned to them.

Let a copy of this judgment along with the record be sent to the concerned trial Court for information and its compliance.

C.c. as per rules.

(ANIL VERMA) JUDGE shailesh

Digitally signed by TEJPRAKASH VYAS Date: 2022.04.25 16:27:07 +05'30'