Madhya Pradesh High Court
Sukhlal Banshi Lodhi And Anr. vs State Of M.P. on 26 September, 1997
Equivalent citations: 1998(1)MPLJ288
JUDGMENT Tej Shankar, J.
1. Accused Sukhlal and Gyansingh (appellants in Cr. Appeal No. 158/92), Amolsingh (appellant in Cr. Appeal No. 165/92) Hanumantsingh and Govindsingh (appellants in Cr. Appeal No. 186/92) have been convicted and sentenced under section 399, Indian Penal Code to a term of 5 years R. I. and a fine of Rs. 2,000/- in default of payment of fine another term of IV2 year was awarded and under section 402, Indian Penal Code to a term of 3 years R.I. and under section 402, Indian Penal Code to a term of three years R.I. and a fine of Rs. 1,000/-, in default of payment of fine another terms of one year R. I. was awarded and appellants Amolsingh, Hanumantsingh, Sukhlal and Gyansingh were further convicted under section 25 of the Arms Act to a term of one year by Shri G. N. Goyal, the then Additional Sessions Judge, Pichhore, district Shivpuri, by order dated 8-7-1992. Out of these persons accused Gyansingh has died and his appeal has abated, vide order dated 13-10-1995.
2. The prosecution story leading to the conviction of the appellants as unfolded from the material on record is that PW 7 R. V. Sharma, the then officer-in-charge, P. S. Khaniadhana got an information from an informant on 21-2-1990 which was entered in Rojnamcha at item No. 561 dated 21-2-1990 and on the basis of that information he along with SDO(P) PW 4 Bhagwatsingh Chauhan, PW 1 S. I. Ramrajsingh Tomar, PW 3 M. L. Sharma, AIS R. P. Tiwari and other members of the Force proceeded on police vehicle for near Devrani Jethani Toria and they reached there. Shri Bhagwatsingh Chauhan, SDO(P) Pichhore gave instructions and according to his instructions the members of the force were divided into three parties, one of the parties was led by the SDO(P) himself, the second party by senior S. O. Bamor Kala and the third by R. B. Sharma himself. The parties went into hiding and after some time they heard Badmashes talking that Siyaram Yadav had sold his land and dacoity be carried out in his house. The time had arrived. They should move ahead. When the Badmashes came nearer the party of SDO(P) threw a challenge and asked the Badmashes to stop whereupon they started running. In the meantime the party of Shri Sharma with the help of party Nos. 1 and 2 caught hold of all the five Badmashes who gave their names as Hanumant Singh, Amolsingh, Sukhlal, Gyansingh and Govind. All of them were arrested at the spot. Hanumant Singh had a 12 bore SBL gun No. 23884 and 9 live cartridges. Amolsingh had SBL topidar gun and in a bag 100 gm of gun powder, 10 topies and 10 pellets. Sukhlal had a country made Katta in which there was one round and 2 live cartridges Gyansingh had 12 bore country made Katta in which there was one round and one live cartridge and Govind Gadariya had a lathi in his hand. These articles were seized before Panchas. Usual investigation had taken place but it is not clear from the material on record as to who had conducted the investigation and submitted the charge-sheet. However, charge-sheet was submitted against accused persons. All the accused persons denied the charge. Accused Sukhlal and Gyansingh (now deceased) alleged that they were implicated on account of enmity. Accused Govind claimed that he was implicated on the assertion that previous dacoits Shivram and Umrao false. Hanumant Singh claimed that he was arrested from his house before Jasrath. He had sown his crop which was harvested by dacoits. Amolsingh claimed that he was falsely got implicated by Shivram and his crop was got harvested. He was arrested from Imliya before Ramdas.
3. The prosecution examined PW 1 Ramrajsingh Tomar, the then officer-in-charge of PS. Bamor Kala, PW 2 Nisar Ahmad who was head constable on 22-2-1990 at P. S. Khaniadhana, PW 3 M. L. Sharma, the then A.S.I. P.S. Bamor Kala, PW 4 Bhagwatsingh Chauhan, the then SDO(P) Pichhore, PW 5 Shravan Kumar, the then Reader to S.D.O. who were all alleged to be members of the parties. PW 6 Siyaram has also been examined in whose house the occurrence was contemplated, and PW 7 R. B. Sharma, officer-in-charge of Khaniadhana police station on that date and he is the informant. Besides these witnesses the prosecution also relied upon Ex. P-l to P-8. The accused persons also entered upon their defence and examined DW 1 Imrat, DW 2 Gopal, DW 3 Ramdas, DW 4 Maharajsingh, DW 5 Jasrath and PW 6 Beeran in their defence. The learned trial Court after hearing the parties and considering the material on record held all the accused persons guilty and sentenced them under sections 399, 402, Indian Penal Code and under section 25 Arms Act as aforesaid. Hence they have filed three different appeals. As all the appeals relate to the same occurrence they have been heard together and are being disposed of by this common judgment.
4. Learned Counsel for the appellants contended that perusal of the entire material on record goes to show that it is a concocted case. The prosecution has not filed copy of the general diary to show that any information was received as claimed by it. Even the F.I.R. is not on record but it is claimed that Ex. P-5 is Dehati Nalish whereas Ex.P-8 is F.I.R. Learned Counsel urged that the entire story put forward by the prosecution smacks of ill design. It appears that the entire work was done at police station and actually no occurrence had taken place. The alleged recovery of instruments with the accused persons and the arrest of the accused persons were all false. The learned Counsel took me through the entire evidence on record and contended that the prosecution has no legs to stand. The learned Court below convicted the appellants without any reliable evidence. It also convicted the appellants under section 25 Arms Act without anything on record to show that sanction as required under section 39 of the Arms Act was ever obtained. In the absence of sanction as required under section 39 the accused could not even be prosecuted and the order of conviction and sentence passed by the learned Court below is liable to be set aside. The learned Counsel for the State, on the other hand, argued that the members of the party who had gone to the place of occurrence have been examined and they have given detailed account of the happening that took place on the date of occurrence. The learned trial Court was, therefore, justified in accepting the prosecution case. As regards the argument relating to the sanction for prosecution under section 25 Arms Act, the learned Counsel has not been able to show any sanction from the record.
5. Before entering into the evidence adduced by the prosecution it appears desirable that the essential ingredients of offences punishable under sections 399/402, Indian Penal Code must be mentioned. In order to bring home an offence under section 399, Indian Penal Code, i.e. the offence of preparation to commit dacoity, the prosecution has to establish that the act of the accused amounted to preparation and this preparation was to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing dacoity and they were preparing in prosecution of the design. As far as offence under section 402 is concerned, it may be mentioned that this section applies to mere assembly without proof of other preparation. There is, however, distinction between the two offences. The offence under section 399, Indian Penal Code is the preparation to commit dacoity whereas the offence under section 402 is complete as soon as five or more persons assemble together for the purpose of committing dacoity. Thus, it has to be proved for an offence under section 402 that the assembly of five or more persons was for the purpose of committing a dacoity. The ingredients of the two offences are almost similar. For an offence under section 402 mere assembling for any preparation is sufficient whereas under section 399 for an offence it must be proved that some additional steps were taken in the course of the preparation to commit dacoity. Unless the prosecution proves these ingredients the mere fact that more than five persons were found at a particular place cannot constitute an offence under this section. Thus, it is bounden duty of the prosecution to establish the ingredients before it can secure conviction of the accused persons. In order to establish its case the prosecution, as mentioned above, examined the alleged members of the police party. It is useful to mention here that according to the prosecution case the occurrence had taken place on 22-2-1990 but I shall show hereinafter that this date does not appear to be correct because varying statements have been given by the witnesses. PW 7 R. B. Sharma was the officer-in-charge of P.S. Khaniadhana on 21-2-1990. In his statement he stated that on that date the informant gave him an information that some Badmashes had assembled on Devrani Jethani Toriya (hillock) for committing dacoity. There is nothing in his statement to show that he had made any entry with respect to this information in the general diary. Copy of the general diary has not been brought on record. There is, however, a mention of this fact in Ex. P-8 which has been claimed to have been prepared by him. It does mention that information was mentioned at serial No. 561 of 21-2-1990. This document is dated 22-2-1990 and the time is 2-30 hours. It was the duty of the prosecution to have brought on record the general diary mentioned in this document in order to show as to what information was actually received by him. It is not understandable as to why a copy of the general diary has not been brought on record. The witnesses have not stated, as said above, in this regard. He proceeds on to say that intimation was given of the information to the SDO(P) Pichhore, S.O. Bamor Kala and on arrival of the SDO(P) according to his instructions a raid party had gone to the place of occurrence. i.e. Devrani Jethani hillock. Amolsingh, Gyansingh, Sukhlal, Hanumant Singh and Govind were arrested with their arms. It is significant to point out that he could not state the facts and prayed for the perusal of the case diary. Under the law the case diary can be seen by the person who had prepared it and that for the purpose of refreshing his memory and not for giving statement with the help of the diary. Perusal of the provisions made under section 172 shows that it provides for diary of proceedings in investigation i.e. case diary. Under clause (3) it has been provided that neither the accused nor his agents are entitled to call for case diary nor to see them. It has further been provided that they are used by the police officers who made them to refresh their memory or if the Court uses them for the purposing of contradicting such police officers. The provision of section 161 or section 145 of the Indian Evidence Act are applicable. Thus, it clearly goes to show that he must not have been present at the time of the occurrence otherwise he must have known the fact. He had actually no right to give statement with the aid of the case diary. The mere fact that he gave statement with the aid of the case diary leads to the above inference that he must not be present at the time of occurrence or no such occurrence had actually taken place. He further stated that first of all Dehati Nalish Ex. P-5 was written. Thereafter the arms of the accused persons were taken into custody, vide memo Ex. P-4. He also gave out the details of the arms which were alleged to have been recovered from the accused persons. After the arrest, the accused persons with seized articles were taken by him to Khaniadhana. On the basis of Dehati Nalish a case under sections 309/402, Indian Penal Code and under section 25 Arms Act was registered, vide Ex. P-8. PW 4 Bhagwatsingh Chauhan was the SDO(P). He has given the date of receipt of information as 22-2-1990. He stated that on that date the officer-in-charge Khaniadhana Rambabu Sharma had given information that at the hillock of Devrani Jethani some Badmashes had assembled and were preparing to commit dacoity. He immediately went on jeep to P.S. Khaniadhana. After having discussions with the informant he, officer-in-charge P. S. Khaniadhana, officer-in-charge P.S. Bamor Kala, A.S.I. Tiwari, M. L. Sharma and other members of the police force proceeded. The vehicle was left at village Adhroni and the entire force proceeded towards Devrani Jethani hillock. Three parties were made and they were posted at three places. Thereafter when the Badmashes after making preparation started coming down he gave a challenge and all the three parties surrounded them and caught them. They were five in number. They were Hanumantsingh, Amolsingh, Sukhlal, Gyansingh and Govind. They had two guns, two country made kattas and a lathi which were seized. Thereafter the accused persons were taken to police station. PW 3 M. L. Sharma was the officer-in-charge of Bamor Kala P.S. and he gave another date when he stated that on 20-2-1990 he was officer-in-charge of P.S. Bamor Kala. He was given an information by R. S. Tomar that he had to accompany the SDO(P) for arresting Badmashes. I have already said above, that one of the witnesses has given the date as 22-2-1990 and the other as 21-2-1990 and this witness mentions 20-2-1990. He further stated that he went to Khaniadhana and from there they proceeded Devrani Jethani hillock. He was in the party of SDO(P). The noise of Badmashes that dacoity was to be committed at the house of some Yadav whereupon SDO(P) gave a challenge and all the three parties caught the accused persons. At that time they had 12 bore gun, country made katta, SB.L. gun and lathi. One Katta was recovered from Gyansingh. He had also stated after looking to the case diary that a lathi was seized from Govind. Nothing else has been stated by him in his examination-in-chief. P.W. 2 Nisar Ahmed, head constable Khaniadhana, has stated that it was 22-2-1990 at about 8 p.m. that he was told by Daroga to be prepared as some Badmashes had to be caught. At about 10 P.M. SDO(P), the S.O. and other members of the police force reached Devrani Jethani hillock where SDO(P) divided members of the force into three parties. The in-charge of one party was SDO(P) and that of others were in-charge P.S. Khaniadhana and one party was in-charge of S.O. Bamor Kala. He was in the party of SDO(P). He went on to say that from the side of hillock the Badmashes were coming down and at that time the SDO(P) gave a challenge the Badmashes ran and they were caught. Amongst Badmashes were the accused persons. Daroga made likhapadi of the article and a katta and two cartridges were recovered from Gyansingh. He has not stated about specific recovery from accused persons. PW 1 Ramrajsingh Tomar was officer-in-charge of P.S. Bamor Kala on 22-2-1990 and he stated that in the leadership of the SDO(P) he went with the police force to the hillock according to the information given by the informant. He had led party No. 2. After taking position a noise of some Badmashes that they were coming down was heard. A challenge was thrown. The Badmashes were caught and on enquiry they gave their names as Amolsingh Yadav, Murari Chaube etc. Topidar gun was recovered from Amolsingh along with one bag in which there was gun powder and pellets. He further stated that his statement was recorded in accordance with law by the then officer-in-charge and all the proceedings were done on the spot. He could not tell as to what articles were with other persons. The entire proceedings took place near Tonya. This exhausts statements of witnesses examined by the prosecution.
6. A careful consideration of the statements on behalf of the prosecution goes to show that there is marked difference in the statements of witnesses regarding the date on which information is alleged to have been given by the informant. As mentioned earlier, one witness i.e. PW 3 M.L. Sharma has stated that information was received on 20-2-1990 whereas PW 7 R. B. Sharma stated that it was given on 21-2-1990 and the other witness has said that the information was received on 22-2-1990. The best evidence in this connection would have been the copy of the general diary No. 561 dated 21-2-1990, reference of which has been made in Ex. P-8 which has not been produced for the reasons best known to the prosecution. The copy of general diary relating to the fact that the police party had started from the P.S. in pursuance of the information received too has not been produced to show that the police party started as claimed. It was the duty of the prosecution to have filed these documents in order to show that there is substance in the assertion of the prosecution that an information as claimed was received and the party had gone to the place of occurrence. According to the statement of PW 4 Bhagwatsingh Chauhan, the then SDO(P) the vehicle was left near village Adhroni. The party could, therefore, have taken independent witnesses from the village. There is nothing in the statement of any witness that any attempt whatsoever was made to take any independent witness from the village. These statements also do not show that where the police force was divided in three parties. There is variance in the statements of witnesses with respect to the fact as to who led which party. The witnesses have mostly stated with the aid of the case diary which is wholly against law. It suggests that the occurrence may not have taken place as claimed by the prosecution and hence they did not remember it. Of course, it is true that statements were recorded nearly after 2 years but even then they must remember the broad facts of the occurrence. If the occurrence had taken in their presence they must have known. Of course, it is correct that memory fails but broad facts are always detained. Again even the statements of witnesses do not show as to why persons were assembled and there is nothing in statements except in the statement of one of the witnesses to show that the accused persons had assembled for the purpose of committing dacoity or had made preparation to commit the offence. Again the statements do not show that when a challenge was thrown by the SDO(P) and the accused persons were arrested there was any compliance of section 50, Criminal Procedure Code. Under this section it is the duty of every police officer or the other person arresting any person without warrant to communicate to the person arrested full particulars of the offence for which he was arrested or other grounds for such arrest. It is claimed that the accused persons were arrested on the spot and articles were recovered from them. I may mention that it is the cardinal principle of criminal jurisprudence that heavy burden rests upon the prosecution to dispel all doubts and it has to prove its case beyond all reasonable doubt. In this view of the matter in order to rule out false implication it is the duty of the arresting officer to give his search to the person arrested before the search of the person arrested is taken and the evidence must show that the arresting officer had given his own search before making search of the accused. Section 51, Criminal Procedure Code provides as to how search is to be made of the arrested person and under this provision if any article is seized from the arrested person the police officer has to give a receipt of the articles to such person. Not only this, it is also required from the prosecution in order to remove any doubt of false implication that the arrest and seizure should be made before independent persons and the seized articles should be sealed at the spot and signatures of witnesses should be taken and a slip in that regard should be pasted upon the bundle containing the sealed articles. This is necessary in order to ensure that the articles seized are not subsequently changed. Section 52 of the Criminal Procedure Code ENABLES A POLICE OFFICER OR OTHER PERSON making arrest under the code to take any offensive weapons from the person arrested which he has with him. These weapons have to be taken to the Court or officer before which or whom the officer or person is required by the Code to produce the person arrested. This has also not been done. There is no evidence in this regard on record. The law has made these safeguards against false implication and if the safeguards have not been complied with the entire prosecution case falls on the ground and cannot be accepted in any case. It is, therefore, the duty of the prosecution to comply with the requirements of the law. To me, it appears that there is substance in the contention of the learned Counsel for the appellants that the story put forward by the prosecution may be concocted under the circumstances mentioned above. I, therefore, conclude that no reliance can be placed upon the statements of witnesses.
7. I have already shown above that the requirements of the law regarding recovery of weapons have not been fulfilled and the evidence is also not worth reliance. The accused persons have been prosecuted under section 25 Arms Act as well. Section 39 of the Arms Act provides that previous sanction of the District Magistrate is necessary for the prosecution against any person in respect of any offence under section 3. Section 3 provides for licence for acquisition and possession of firearms and ammunition. Thus, unless there is a previous sanction of the District Magistrate a person cannot be prosecuted in respect of any offence under section 3. Section 25 provides for an offence relating to possession or carrying any prohibited arms or prohibited ammunition in contravention of section 3. There are other provisions as well to which we are not concerned as in the present case the prosecution has claimed that the accused persons were in possession of arms and ammunition without any licence. Thus, sanction was necessary and in the absence of sanction the accused persons could not be prosecuted at all in spite of the fact that they were in possession of any unlicenced arm though that fact has not been proved in the case in hand. Learned presiding officer, ought to have known the provisions of section 39 Arms Act. It is unfortunate that without looking to this provision and without caring to marshal the evidence properly and going to the fact that requirements of law have not been fulfilled, he held the accused guilty of th. offence punishable under section 25 Arms Act. In the present case nothing has been said by any witness whatsoever that sanction was obtained for the prosecution under section 25. I may point out here that sanction is not a mere formality. It has to be proved that it was granted by the authority after applying his mind. It must be shown that the firearm or weapon with respect to which sanction was prayed was actually taken to the authority concerned and after looking to it the relevant papers, understanding and after applying his mind sanction was granted. In this case, there is complete absence of the sanction. The accused could not, therefore, be convicted at all.
8. I, therefore, conclude that the order of conviction and sentence recorded by the learned Court below cannot be sustained and has to be set aside. In the result all the appeals succeed and the order of conviction and sentence passed against the appellants is set aside and they are acquitted of the charges for which they are tried. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged. The fine, if paid, shall be refunded to them.
9. Let a copy of this judgment be placed on the record of Criminal Appeals Nos. 165/92 and 186/92.