Chattisgarh High Court
Raju Khanjar vs State Of Chhattisgarh on 3 August, 2009
Author: T.P. Sharma
Bench: T.P. Sharma
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No.784 of 2008
1. Raju Khanjar
2. Chhotu @ Krishna
3. Pitambar S/o Vrindavan Sahu
4. Sattyan Madhwan
...Petitioners
Versus
State of Chhattisgarh
...Respondents
(Appeal under Section 374 of the Code of Criminal Procedure,
1973)
! Mrs.Fouzia Mirza, counsel for the appellants
^ Mr.Akhil Mishra, Dy.Govt.Advocate for the State/respondent
Honble Mr. T.P. Sharma, J
Dated:03/08/2009
: Judgment
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JUDGMENT
(Delivered on 3rd August, 2009) This appeal is directed against the judgment of conviction and order of sentence dated 28.6.2008 passed by the Additional Sessions Judge, Bhatapara, Camp Court, Baloda Bazar, in Sessions Trial No.14/2007 whereby and whereunder learned Additional Sessions Judge after holding the appellants guilty for the offence punishable under Sections 399 and 402 of the Indian Penal Code each of them sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.1000/- and rigorous imprisonment for 5 years and to a fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months on each count.
2. Judgment of conviction and order of sentence is challenged on the ground that without there being any proof for preparation to commit dacoity and that too by five or more persons, the Court below has convicted and sentenced the appellants as aforementioned and thereby committed illegality.
3. Case of the prosecution in brief is that the present accused/appellants and one absconding accused are residents of Bhilai, District Durg. On the date of incident i.e. 29.4.2005 Station House Officer of the police station Palari, District Raipur came into knowledge that present appellants and one absconding Jaideep were present in the vacant house of Daulat Chandrakar at Palari in suspicious condition and planning for committing dacoity. Investigating officer along with police officials with arms proceeded for the spot. Police force surrounded the house of Daulat Chandrakar. They heard the sound of persons present inside the house. They were speaking with each other that they will commit dacoity in the house of Heera Seth and they are directing their persons as to how they will commit dacoity and who will present at which place. They were planning to commit dacoity about 12 mid night. Raid party challenged the persons present inside the house, then two persons fled away from the house and three accused persons namely Raju Khanjar, Chhotu @ Krishna and Pitambar were found in the house. They were caught red handed along with arms and ammunition. Dehati nalishi was recorded on the spot vide Ex.P/6. Finally, F.I.R. was lodged vide Ex.P/5. Accused Raju was in possession of one country-made pistol, one knife and two cartridges which were recovered from him vide Ex.P/7, Accused Chhotu @ Krishna was having one country-made pistol and two cartridges which were recovered from him vide Ex.P/8 and accused Pitambar was also in possession of one country-made pistol and three cartridges which was recovered from him vide Ex.P/9. Sketch of arms and cartridges were prepared vide Exs.P/10 to 12. Accused were arrested on the spot vide Exs.P/13 to 15. Spot map was prepared vide Ex.P/16.
4. After recording the statements of the witnesses under Section 161 of the Code of Criminal Procedure, 1973 (in short `Code'), seized firearms were sent for examination and same was found in working condition and cartridges were alive vide Exs.P/2 and P/4. Sanction was obtained from the District Magistrate vide Ex.P/1C. After completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Baloda Bazar who in turn committed the case to the Court of Sessions, Raipur from where learned Additional Sessions Judge, Bhatapara received the same on transfer for trial.
5. In order to prove the guilt of the accused/appellants, the prosecution has examined as many as 11 witnesses. Statements of the accused/appellants were recorded under Section 313 of the Code where they denied the circumstances appearing against them and innocency and false implication is pleaded.
6. Learned Additional Sessions Judge after affording an opportunity of hearing to the parties, convicted and sentenced the appellants as aforementioned.
7. I have heard Mrs.Fouzia Mirza, counsel for the appellants and Mr.Akhil Mishra, Deputy Government Advocate for the State/respondent and perused the judgment impugned and record of the court below.
8. Learned counsel for the appellants vehemently argued that in order to convict the appellants for the offence punishable under Section 399 of the Indian Penal Code, the prosecution is required to prove preparation of dacoity beyond all shadow of doubt and for conviction under Section 402 of the Indian Penal Code, the prosecution is required to prove that persons present were dacoit and number of persons were five or more. Only presence of persons present in place with arms and explosive substance is not sufficient to convict the persons under Sections 399 and 402 of the Indian Penal Code. Learned counsel further argued that statements of the witnesses do not inspire confidence and trustworthy and independent witnesses though they were kotwars of the village i.e.Bhagwan Das (PW-10) and Vijay Das (PW-11) were within the control of police officers but have not supported the case of the prosecution. Only police officials who are interested in outcome of the case has deposed against the present appellants and their evidence are full of contradiction, omission and discrepancies. They have not supported the evidence of each other. From the perusal of the statements of the prosecution witnesses it is difficult to hold that who chased the two persons who fled away from the spot when all the persons of raid party were present on the spot within very close distance, then how it was possible that some witnesses heard the sound of the accused persons and some had not heard the sound. The evidence of the prosecution that pitch of sound of the accused persons were so high that they have heard the sound from the outside of the room that too for the commission of dacoity at 12 mid night are improbable, impossible and not reliable. Learned counsel further argued that dehati nalishi was recorded on the spot bearing 0/2005. Seizure of the articles which were made on the spot bears Crime No. 124/2005 shows concealing and tempering the documents with a view to falsely implicate the appellants in the alleged commission of offence. Alleged accused Jaideep is still absconding. The prosecution witnesses have not deposed that they knows the absconding appellant Jaideep and the person who absconded from the spot alleged Sattyan Madhwan. No identification parade has been conducted by the prosecution for identification of Sattyan Madhwan. On the basis of alleged oral admission of the co-accused that the persons who fled away from the spot were Sattyan Madhwan and Jaideep is not admissible in the evidence. Learned counsel also argued that according to the case of the prosecution the present appellants were wanted in one Mahadev Murder Case and with a view to create pressure and strengthening to Mahadev Murder Case the police officers have falsely implicated the present appellants in the crime in question. Learned counsel also argued that according to the case of the prosecution persons were present at Palari there were so many houses in the vicinity and so many persons were present but police has not examined any independent witnesses in support of the case of the prosecution. Even Investigating Officer P.S.Sen (PW-7) has admitted in para-23 and 24 of his evidence that he has inquired the matter from Devnath and Tekram but he has not recorded their statements. He has also not recorded the statement of wife of R.L.Tekam. This high handed investigation shows that the police party has decided to implicate the appellants in false accusation.
9. Learned counsel placed reliance in the matter of Suleman and another v. State of Delhi through Secretary1, in which the Apex Court has held that in the absence of cogent evidence for preparation to commit dacoity, conviction and sentence under Sections 399 and 402 of the Indian Penal Code is not sustainable. Learned counsel further placed reliance in the matter of State of U.P.v. Punni & Ors.2 in which the Apex Court has held that in the absence of non-examination of S.O. and I.O. adjoining grove holder are fatal to prosecution. In case of offence punishable under Section 399 of the Indian Penal Code, in the absence of any resistance or struggle by the alleged accused, previous enmity between two accused who were found together makes their participation of the persons for the commission of preparation of dacoity is improbable. Learned counsel also placed reliance in the matter of Chaturi Yadav and others v. State of Bihar3 in which the Apex Court has held that the presence of 8 persons in the school compound is not sufficient to prove preparation of dacoity. There may be possibility of commission of some other offence. Learned counsel also placed reliance in the matter of Chhotey & Ors. v. State of U.P.4 in which the High Court of Allahabad has held that when the raid party was at the distance from spot then it is difficult to hear the sound and the appellants did not retaliate by their fire-arms to avoid arrest was circumstance to create doubt on the story of prosecution. Learned counsel also placed reliance in the matter of Sukhlal Banshi Lodhi and another v. State of M.P.5 in which the High Court of Madhya Pradesh has held that merely assembly or presence of the persons does not constitute the offence of preparation to commit dacoity punishable under Section 399 of the Indian Penal Code. Learned counsel also placed reliance in the matter of Murarilal v. State of M.P.6 in which the High Court of Madhya Pradesh has held that mentioning of crime number in different seizure memo without registering of the offence makes the story doubtful. Learned counsel also placed reliance in the matter of Chhagan and others v. State of M.P.7 in which the High Court of Madhya Pradesh has held that the only proof of the assembly of five or more persons is not sufficient to convict the appellants under Section 399 of the Indian Penal Code.
10. On the other hand, learned counsel for the State/respondent supported the judgment impugned and argued that the prosecution has proved its case beyond all shadow of doubt. The presence of the accused persons are residents of Bhilai, District Durg, far away from Bhilai were found at Palari in one deserted house with arms and ammunition. Though independent witnesses have not supported the case of the prosecution but police officials are also natural witnesses who have supported the case of the prosecution and their evidence cannot be discarded only on the ground that they are interested witnesses and they are interested in outcome of the case. After receiving information from the informant, police officials constituted raid party. They heard the sound of the accused persons present inside the room within short distance. Out of five persons two accused persons fled away. The persons who fled away and the persons who were present inside the room have not tried to attack upon the police party because they were surrounded by the police force and police force has already challenged them. This is not a case where accused persons where having an opportunity to flee away from the spot. Persons inside the room surrounded by the wall, therefore, only escaping of the accused persons from the door was possible which was checked by the police officials though at the time of such checking two persons fled away whom two police officials chased but finally two persons escaped from the spot. Learned counsel further argued that the prosecution has proved the fact that three accused caught hold on the spot and two persons escaped from the spot were making preparation to commit dacoity. Conviction and sentence for the offence punishable under Sections 399 and 402 of the Indian Penal Code is sustainable under the law. Learned counsel placed reliance in the matter of Chandrasekhar Sureshchandra Bhatt and others v. State of Maharashtra8 in which the Apex Court has held that the marginal variations between the statement of the prosecution witness recorded under Section 161 CrPC and the testimony given in court, cannot be said to be improvements made with any sinister motive. Preparation to commit dacoity, dialogue between two accused, one reminding the other of the sequence to be followed in the operation i.e. first to loot the belongings and then to abduct the victim. Dialogue overheard by a police officer who was then in guise of a tea vendor is not an artificial introduction of a dialogue. Reliance can be placed on evidence of the police officer for conviction.
11. In order to appreciate the contentions of the parties, I have examined the evidence available on record. As regard the presence of the absconding accused Jaideep and Sattyan Madhwan is concerned, witnesses examined on behalf of the prosecution have specifically deposed that previously they were not knowing to the accused persons but they came to know on the basis of statements of the accused persons when two persons fled away from the spot. PW-7 Sub Inspector P.S.Sen has deposed that when he went near room within close distance then he heard that persons present inside were talking with each others and they are talking that one person was directing Chhhotu that he will present in front and he will watch and Pitambar will present in other side to watch and obstruct. Raju, Sattyan Madhwan and Jaideep will enter in the house of Heera Seth and in case of any emergency all persons will enter in the house. This fact has also been mentioned in Dehati Nalishi (Ex.P/6) written on the spot.
12. Admittedly, according to case of prosecution two persons fled away from the spot. No identification parade was conducted relating to the accused Sattyan Madhwan who was subsequently arrested. The prosecution has not adduced any material to show on what basis they have arrested the accused Sattyan Madhwan except alleged oral statement of other co-accused. Conduction of test identification parade is not sine qua non for the identification of the accused and if the accused otherwise identified. But the prosecution is required to prove the identity of the accused by other cogent evidence.
13. In the present case, the prosecution witnesses have not deposed that they have identified two persons who fled away from the spot and they were Sattyan Madhwan and Jaideep. There was no basis for subsequent arrest of Sattyan Madhwan and mentioning the name of Jaideep as co-accused in this case. In the absence of legal evidence, the complicity of the alleged Sattyan Madhwan and Jaideep is not established in the present case. Learned Additional Sessions Judge has not considered the material aspect of the identity of the accused Sattyan Madhwan and Jaideep and therefore, conviction of Sattyan Madhwan for the commission of the aforesaid offence is not sustainable under the law.
14. As regards the complicity of the accused/appellants Raju Khanjar, Chhotu @ Krishna and Pitambar is concerned and presence of five persons at the time of such commission to meet the requirement of the offence of preparation to commit dacoity is concerned, independent witnesses kotwar Bhagwan Das (PW-10) and kotwar Vijay Das (PW-11) have not supported the case of the prosecution. They have simply admitted their signatures on the documents. Only the case of the prosecution has been supported by the police officials. Head constable Ashok Tiwari (PW-1), Jeevan Lal (PW-2), Itwari Ram Sahu (PW-3), Dinesh Kumar Kurre (PW-4), Sub Inspector P.S.Sen (PW-7) who has conducted the alleged raid and Ghanshyam (PW-8) head constable have specifically deposed in their evidence that they were members of the raid party and they surrounded the house of Daulat Chandrakar where five persons were present. At the time of entering into the said premise two persons fled away from the spot whom they chased but did not succeed to catch hold or arrest. Three persons namely Raju khanjar, Chhotu @ Krishna and Pitambar were found inside the house of Daulatram Chandrakar. Seizure were made and they were arrested. F.I.R. was lodged by P.S.Sen (PW-7) vide Ex.P/5 on the basis of dehati nalishi (Ex.P/6) recorded on the spot. Defence has cross-examined these witnesses in detail but had not been able to elicit anything in their cross-examination to show that these three accused persons were not present in the house of Daulat Chandrakar at the time of alleged raid, inter alia, defence has suggested Ashok Tiwari (PW-1) in para-15 and P.S.Sen (PW-7) in para-28 that the aforesaid three accused persons were present in the house and they were taking their meals, though they are police officials but their statements cannot be discarded only on the ground that they are police officials and they are interested in the outcome of the case.
15. While dealing with the question i.e. evidentiary value of the statements of Police Officers, the Apex Court has held in the case of Anil alias Andya Sadashiv Nandoskar v. State of Maharashtra9, that testimony of police officials are not liable to be discarded merely because they are police officials. However, their evidence should be carefully scrutinized and independently appreciated. The Apex Court further held that witnesses being police officers do not by itself create a doubt about their creditworthiness if non-examination of Panch witnesses is explained satisfactorily. Para 5 of the said judgment reads as under:-
"Indeed all the 5 prosecution witness who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinised and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analysed the evidence of all the 5 police officials. There is nothing on the record to show that any one of them was hostile to be appellant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended. Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country-made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two panch witnesses, which is supported by the report Ext. 24 filed by PW 4 PI Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent panchas at the time of search and seizure and they were so joined. They were also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore they could not be examined at the trial. In the face of the facts stated in report Ext. 24, the correctness of which has remained virtually unchallenged during the cross-examination of PW 4, the non-examination of the two panchas cannot be said to be on account of any oblique reason. Their non-production at the trail thus has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the addresses furnished by them at the time of search and their whereabouts could not be traced despite diligent efforts made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country-made revolver and cartridges for which he could produce no licence or authority because of the non- examination of the panch witnesses. We find that the evidence of PW 1 to PW 5 is reliable, cogent and trustworthy."
16. Further, in the matter of P.P. Beeran v. State of Kerala10 it has been held by the Apex Court that reliance can be placed on the uncorroborated evidence of the Sub Inspector of Police.
17. Statements of the aforesaid witnesses relating to presence of three accused persons are supported by Sub Inspector P.S.Sen (PW-7) and also supported the statements of each other, dehati nalishi (Ex.P/6), F.I.R. (Ex.P/5), arrest memos (Exs.P/13 to P/15) and suggestion given by the defence that they were not only arrested to them but they were produced for remand before the Judicial Magistrate First Class, Baloda Bazaar on 30.4.2005, inspire confidence trustworthy relating to presence of these three accused persons at the time of the alleged raid inside the house of Daulatram Chandrakar. The aforesaid police officials have also deposed that two persons fled away from the spot where they chased but did not succeed to catch hold or arrest.
18. The prosecution has not proved that the persons fled away were Sattyan Madhwan and Jaideep, but it is clear from the evidence of the aforesaid witnesses that two persons fled away from the house of Daulatram Chandrakar and three persons were found inside the house shows that at the time of raid five persons were present and out of five persons three persons were arrested and two persons were fled away from the spot.
19. In order to establish the complicity of the accused/appellants in the crime in question, I have examined the prosecution witnesses. Sub Inspector P.S.Sen (PW-7) investigating officer has specifically deposed in his evidence that on 29.4.2005 he received information from the informant that in the house of Daulatram Chandrakar some suspicious persons are present, then he conducted raid in the said house along with police force. Raid party was armed with riffles. He has deposed that he heard the sound coming from the house that some persons is telling "NksVq mQZ d`'.k rqe lkeus jguk okp djrs jgukA firkEcj rqe lMs rjQ jguk dksbZ vkneh vk, rks jksdukA eS jktw lR;e t;thi ghjklsB ds ?kj ?kwlsxsA vkSj dksbZ Hkh foIir dh fLFkfr es lc yksx ,dlkFk vanj vk tkosxs", then when they opened the door and went inside the house, at that time two persons fled away and then he directed the police constables Ghanshyam and Itwari Ram Sahu to chase them. Three accused persons subsequently found inside the house then he alarmed them that he may shoot. He has also deposed that appellant Raju Khanjar was in possession of country-made pistol, two cartridges and one knife, Chhotu @ Krishna was in possession of country-made pistol and two cartridges and Pitambar was in possession of country-made pistol and three cartridges which were seized on the spot from the aforesaid accused vide Exs.P/7 to P/9. He has also deposed that he has prepared the picture/figure of pistol and cartridges which were recovered from the aforesaid three accused persons vide Exs.P/10 to P/12. Spot map was also prepared vide Ex.P/16. He has also deposed that even he has identified the articles in the Court as articles A to D. Head constable Ashok Tiwari (PW-1) who was also member of raid party has deposed in para-4 of his evidence that he heard the sound coming from the house that today night they will commit dacoity in the house of Heera Seth and also heard that Pitambar will present in front of the house. Krishna will enter into the house and in case of any emergency, he will fire and will alert to other persons, then they will enter into the house. Three persons were found inside the house along with arms and two persons fled away. Jeevanlal (PW-2) has also deposed in his evidence that persons present in the house were making preparation for committing dacoity, then they knocked the door. Finally two persons fled away and three persons arrested along with weapons. Constable Itwari Ram Sahu (PW-3) has also supported the case of prosecution and deposed that persons present inside the room were talking about the commission of dacoity in the night. Two persons fled away and three persons found inside the house along with weapons which were seized. Dinesh Kumar Kurre (PW-4) has also supported the case of prosecution. Defence has cross-examined Sub Inspector P.S.Sen (PW-7) in detail. In his detail cross-
examination he has deposed that he conducted the raid from 13.30 to 16.30 hours and came back to police station at 17 hours. He has admitted that they were armed with rifles. He has seized the articles recovered from the accused/appellants persons from the spot. The house of Daulatram is situated in close vicinity. The house of Devnath Sahu and Madan Pandey were situated beside the house of Daulatram. One person was also residing in rent in the house of Daulatram. He has also deposed in para-23 of his cross-examination that he has inquired with Devnath and Takram but he has not recorded their statements. He has also deposed in para-24 that he has not recorded the statement of wife of Tekram. He has also admitted that according to information received from the informant that suspicious persons were residing in the house of Daulatram since 10 to 15 days but he has not seen any persons moving around in the city in suspicious condition. He has denied the suggestion that when they entered into the house of Daulatram at that time three accused persons were taking their meals. Defence has cross-examined Ashok Tiwari (PW-1) in detail in which he has admitted the situation of the house of Daulatram and the vicinity. Jeevan Lal (PW-2) has admitted in his cross- examination that he cannot say which accused were armed with which were weapons. Itwari Ram Sahu (PW-3) and Dinesh Kumar Kurre (PW-4) have also admitted the situation of the house and other house situated near the house of Daulatram.
20. Admittedly in the present case, the police has not examined any persons of the vicinity. These seizure witnesses have not supported the case of prosecution. Only seizure of the weapons from the accused persons is supported by only P.S.Sen (PW-7).As held by the Apex Court in the matter of Suleman and another (supra), the prosecution is required to establish the fact by cogent evidence for preparation to commit dacoity.
21. As held by the Apex Court in the matters of State of U.P, Chaturi Yadav, Chhotey and Sukhlal Banshi (supra), only presence of five or more persons even along with arms are not sufficient to constitute the offence of Section 399 of the Indian Penal Code. The prosecution is required to prove that presence of five or more persons and that too for preparation to commit dacoity. Hearing of the sound from distance is not admissible and in the absence of any resistance of behalf of the accused makes a case improbable.
22. In the present case, crime number was recorded by the Investigating officer in the seizure and arrest memos even without registering the offence. As regards the mentioning of crime number in different memos without registering the offence is concerned, as held by the High Court of Madhya Pradesh in the matter of Murarilal (supra), mentioning of crime number in different seizure memo without registering of the offence makes the story doubtful.
23. In this case the prosecution is required to prove the fact and ingredients of the offence by cogent evidence. Sub Inspector P.S.Sen (PW-7) who has conducted raid has deposed in his evidence relating to seizure and arrest but nothing has been asked by the defence about writing/mentioning crime number in those documents. In the absence of such suggestion/question, it is difficult to hold that only mentioning crime number before registration of the case by the Station House Officer within short distance of half kilometer from the police station and in the absence of any S.O. to register further offence in the police station, any crime number recorded in the seizure and arrest memo does not make the case doubtful or improbable. The prosecution witnesses have deposed that they have heard sound coming out from the house. They have not exactly corroborated that what they have heard and there are discrepancies between the statements of the police officials but they have specifically deposed that they surrounded the house at very close distance and then they entered in the room. Hearing of the sound is question of fact. The persons standing in different parts of the room may hear different parts of conversation and they are in a position to hear the conversation from outside the room. In this case, three accused persons found inside the room and two persons fled away. They have not admitted any attack upon the police party. Two persons who fled away from the spot virtually ran away to save themselves, then it was not practicable for them to stop and attempt any force or fire upon the police party who were chasing them. Likewise when the three persons surrounded by the police force having arms and after challenging it was not practicable for these persons who were inside the room having no way of escaping to use the arms or attempt or to make any resistance by using arm.
24. In the present case, the police has not examined the persons of the vicinity, but non-examination of the persons of the vicinity itself is not sufficient to discard the testimony of the police officials. Cause of presence of three accused persons in the deserted room at Palari, far away from their residents at Bhilai have not been explained by the three accused persons, however, they were not under obligation to explain but these facts constitute the strong adverse circumstances against the aforesaid three accused persons that too with firearm. Conversation heard by the police officials reveals that they were talking that somebody will stand in front of gate, somebody will inter into the house and in case of any emergency somebody will fire and all will enter in the house simultaneously. These statements are sufficient for drawing inference that they were discussing and planning for dacoity.
25. As held by the Apex Court in the matter of Chandrasekhar (supra), dialogue is sufficient for drawing inference of the commission for preparation to commit dacoity and statements of the police officials can be relied upon.
26. The evidence adduced on behalf of the prosecution is uncontroverted and sufficient for drawing inference that the persons resident of Bhilai far away from Palari were found at Palari with suspicious conditions with deadly weapons and were talking to each other who will present there, how they will enter in the house and how they will act in case of any emergency is sufficient for drawing inference that the persons were preparing to commit dacoity and they had assembled for the purpose of committing dacoity punishable under Sections 399 and 402 of the Indian Penal Code.
27. Admittedly three persons were arrested but it is clear from the evidence of the prosecution that five persons were present. Out of five persons two persons fled away though they have not been identified by the prosecution witnesses is not sufficient to connect the appellant Sattyan Madhwan and absconding accused Jaideep in the crime in question, but it is sufficient for drawing inference that along with three appellants i.e. Raju Khanjar, Chhotu @ Krishna and Pitambar two other persons were present and five persons have committed the offence of preparation to commit dacoity. Learned Additional Sessions Judge has appreciated the evidence available on record but has not considered the question of identity of accused Sattyan Madhwan and in the absence of identity of accused Sattyan Madhwan. Conviction and sentence of accused Sattyan Madhwan is not sustainable under the law. Conviction of rests accused/appellants is based on clinching and credible is sustainable under the law.
28. As regards the question of sentence is concerned, four accused persons have been convicted and sentenced rigorous imprisonment for 7 years and fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months under Section 399 of the Indian Penal Code and rigorous imprisonment for 5 years and fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for 6 months under Section 402 of the Indian Penal Code. The presence of the aforesaid appellants at Palari far away from their residents with arms show the gravity of the offence. The sentence is neither excessive nor in proportionate to the act attributed to the appellants.
29. In the result, the appeal is partly allowed. Judgment of conviction and order of sentence is partly modified. Conviction and sentence of appellants No.1 to 3 are hereby maintained and conviction of appellant No.4 Sattyan Madhwan for the offence under Sections 399 and 402 of the Indian Penal Code is hereby set aside. If appellant No.4 Sattyan Madhwan is in jail, he be set at liberty forthwith in the present case, if not required in any other case. Fine amount, if deposited by appellant No.4, shall be refunded to him.
JUDGE